Mathews v. United States, 485 U.S. 58 (1988)

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

This case requires the Court to decide whether a defendant in a federal criminal prosecution who denies commission of the crime may nonetheless have the jury instructed, where the evidence warrants, on the affirmative defense of entrapment. The United States Court of Appeals for the Seventh Circuit upheld the ruling of the District Court, which had refused to instruct the jury as to entrapment because petitioner would not admit committing all of the elements of the crime of accepting a bribe. 803 F.2d 325 (1986). This holding conflicts with decisions of other Courts of Appeals, which have taken a variety of approaches to the question.{1} We granted certiorari to resolve this conflict, and we now reverse.

Petitioner was employed by the Small Business Administration (SBA) in Milwaukee, Wisconsin, and was responsible for the SBA’s "8A Program," which provided aid to certain small businesses. Under the program, the SBA obtained Government contracts and subcontracted them to program participants. The SBA would then assist the participants in performing the contracts. Midwest Knitting Mills, whose president was James DeShazer, was one of the participants in the 8A Program. DeShazer’s principal contact at the SBA was petitioner.

In October, 1984, DeShazer complained to a Government customer that petitioner had repeatedly asked for loans. DeShazer believed that petitioner was not providing Midwest with certain 8A Program benefits because DeShazer had not made the requested loans. In early 1985, the Federal Bureau of Investigation (FBI) arranged for DeShazer to assist in the investigation resulting from his complaint. Under FBI surveillance, DeShazer offered petitioner a loan that, according to DeShazer, petitioner had previously requested. Petitioner agreed to accept the loan, and two months later, DeShazer met petitioner at a restaurant and gave him the money. Petitioner was immediately arrested and charged with accepting a gratuity in exchange for an official act. 18 U.S.C. § 201(g).

Before trial, petitioner filed a motion in limine seeking to raise an entrapment defense. The District Court denied the motion, ruling that entrapment was not available to petitioner because he would not admit all of the elements (including the requisite mental state) of the offense charged. The District Court did, however, allow petitioner to argue as his first line of defense that his acts "were procurred [sic] by the overt acts of the principle [sic] witness of the Government, Mr. DeShazer."{2}

App. 131.

At trial, the Government argued that petitioner had accepted the loan in return for cooperation in SBA matters. The Government called DeShazer, who testified both that petitioner had repeatedly asked for loans and that he and petitioner had agreed that the loan at issue would result in SBA-provided benefits for Midwest. The Government also played tape recordings of conversations between DeShazer and petitioner in which they discussed the loan. Petitioner testified in his own defense that, although he had accepted the loan, he believed it was a personal loan unrelated to his duties at the SBA. Petitioner stated that he and DeShazer were friends, and that he had accepted a personal loan from DeShazer previously. According to petitioner, he was in dire financial straits when DeShazer broached the possibility of providing a loan. Petitioner also testified that DeShazer had stated that he needed quickly to get rid of the money that he was offering to petitioner because he had been hiding the money from his wife and was concerned that she would be upset if she discovered this secret; DeShazer had also stated at one point that, if petitioner did not take the money soon, DeShazer would be tempted to spend it.

At the close of the trial, petitioner moved for a "mistrial" because of the District Court’s refusal to instruct the jury as to entrapment. The District Court noted that the evidence of entrapment was "shaky at best," ibid., but rather than premise its denial of petitioner’s motion on that ground, the court reaffirmed its earlier ruling that, as a matter of law, petitioner was not entitled to an entrapment instruction because he would not admit committing all elements of the crime charged. The jury subsequently found petitioner guilty.

The United States Court of Appeals for the Seventh Circuit affirmed the District Court’s refusal to allow petitioner to argue entrapment:

When a defendant pleads entrapment, he is asserting that, although he had criminal intent, it was "the Government’s deception [that implanted] the criminal design in the mind of the defendant." United States v. Russell, 411 U.S. 423, 436 . . . (1973); United States v. Rodgers, 755 F.2d 533, 550 (7th Cir.1985). We find this to be inconsistent per se with the defense that the defendant never had the requisite criminal intent. We see no reason to allow [petitioner] or any other defendant to plead these defenses simultaneously.

803 F.2d at 327.

We granted certiorari, 480 U.S. 945 (1987), to consider under what circumstances a defendant is entitled to an entrapment instruction. We hold that even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

Because the parties agree as to the basics of the affirmative defense of entrapment as developed by this Court, there is little reason to chronicle its history in detail. Suffice it to say that the Court has consistently adhered to the view, first enunciated in Sorrells v. United States, 287 U.S. 435 (1932), that a valid entrapment defense has two related elements: government inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct. See Sherman v. United States, 356 U.S. 369, 376-378 (1958); United States v. Russell, 411 U.S. 423, 435-436 (1973); Hampton v. United States, 425 U.S. 484, 489 (1976). Predisposition, "the principal element in the defense of entrapment," Russell, supra, at 433, focuses upon whether the defendant was an "unwary innocent" or, instead, an "unwary criminal" who readily availed himself of the opportunity to perpetrate the crime. Sherman, supra, at 372; Russell, supra, at 436. The question of entrapment is generally one for the jury, rather than for the court. Sherman, supra, at 377.

The Government insists that a defendant should not be allowed both to deny the offense and to rely on the affirmative defense of entrapment. Because entrapment presupposes the commission of a crime, Russell, supra, at 435, a jury could not logically conclude that the defendant had both failed to commit the elements of the offense and been entrapped. According to the Government, petitioner is asking to

clai[m] the right to swear that he had no criminal intent and in the same breath to argue that he had one that did not originate with him.

United States v. Henry, 749 F.2d 203, 214 (CA5 1984) (en banc) (Gee, J., dissenting).

As a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. Stevenson v. United States, 162 U.S. 313 (1896); 4 C. Torcia, Wharton’s Criminal Procedure § 538, p. 11 (12th ed.1976) (hereinafter Wharton). A parallel rule has been applied in the context of a lesser included offense instruction, see Fed.Rule Crim.Proc. 31(c); Keeble v. United States, 412 U.S. 205, 208 (1973); Sansone v. United States, 380 U.S. 343, 349 (1965). In Stevenson, this Court reversed a murder conviction arising out of a gunfight in the Indian Territory. The principal holding of the Court was that the evidence was sufficient to entitle the defendant to a manslaughter instruction, but the Court also decided that the defendant was entitled as well to have the jury instructed on self-defense. The affirmative defense of self-defense is, of course, inconsistent with the claim that the defendant killed in the heat of passion.

Federal appellate cases also permit the raising of inconsistent defenses. See Johnson v. United States, 138 U.S.App.D.C. 174, 179, 426 F.2d 651, 656 (1970) (the defense in a rape case was permitted to argue that the act did not take place and that the victim consented), cert. dism’d, 401 U.S. 846 (1971); see also Womack v. United States, 119 U.S.App.D.C. 40, 336 F.2d 959 (1964). And state cases support the proposition that a homicide defendant may be entitled to an instruction on both accident and self-defense, two inconsistent affirmative defenses. 4 Wharton § 545, p. 32.

The Government points out that inconsistent pleading is specifically authorized under the Federal Rules of Civil Procedure, but that there is no parallel authorization under the Federal Rules of Criminal Procedure. Rule 8(e)(2) of the Federal Rules of Civil Procedure provides in relevant part:

A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. . . . A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.

(Emphasis added.) The absence of a cognate provision affecting criminal trials, we think, is not because the Rules intended to more severely restrict criminal defendants than civil parties, but because of the much less elaborate system of pleadings -- particularly with respect to the defendant -- in a criminal case. The issues of fact in a criminal trial are usually developed by the evidence adduced and the court’s instructions to the jury. A simple plea of not guilty, Fed.Rule Crim.Proc. 11, puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment. Sorrells, 287 U.S. at 452. The only matters required to be specially pleaded by a defendant are notice of alibi, Fed.Rule Crim.Proc. 12.1, or of intent to rely on insanity as a defense, Fed.Rule Crim.Proc. 12.2.

The Government argues that allowing a defendant to rely on inconsistent defenses will encourage perjury, lead to jury confusion, and subvert the truthfinding function of the trial. These same concerns are, however, present in the civil context, yet inconsistency is expressly allowed under the Federal Rules of Civil Procedure. We do not think that allowing inconsistency necessarily sanctions perjury. Here petitioner wished to testify that he had no intent to commit the crime, and have his attorney argue to the jury that if it concluded otherwise, then it should consider whether that intent was the result of Government inducement. The jury would have considered inconsistent defenses, but petitioner would not have necessarily testified untruthfully.

We would not go so far as to say that charges on inconsistent defenses may not on occasion increase the risk of perjury, but, particularly in the case of entrapment, we think the practical consequences will be less burdensome than the Government fears. The Court of Appeals in United States v. Demma, 523 F.2d 981, 985 (CA9 1975) (en banc), observed:

Of course, it is very unlikely that the defendant will be able to prove entrapment without testifying and, in the course of testifying, without admitting that he did the acts charged. . . . When he takes the stand, the defendant forfeits his right to remain silent, subjects himself to all the rigors of cross-examination, including impeachment, and exposes himself to prosecution for perjury. Inconsistent testimony by the defendant seriously impairs and potentially destroys his credibility. While we hold that a defendant may both deny the acts and other elements necessary to constitute the crime charged and at the same time claim entrapment, the high risks to him make it unlikely as a strategic matter that he will choose to do so.

The Government finally contends that, since the entrapment defense is not of "constitutional dimension," Russell, 411 U.S. at 433, and that since it is "relatively limited," id. at 435, Congress would be free to make the entrapment defense available on whatever conditions and to whatever category of defendants it believed appropriate. Congress, of course, has never spoken on the subject, and so the decision is left to the courts. We are simply not persuaded by the Government’s arguments that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject.

The Government contends as an alternative basis for affirming the judgment below that the evidence at trial was insufficient to support an instruction on the defense of entrapment. Of course evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant such an instruction. But this question was pretermitted by the Court of Appeals, and it will be open for consideration by that court on remand.

Reversed and remanded.

JUSTICE KENNEDY took no part in the consideration or decision of this case.

1. Two other Circuits have adopted the approach taken by the Seventh Circuit. See United States v. Hill, 655 F.2d 512, 514 (CA3 1981); United States v. Whitley, 734 F.2d 1129, 1139 (CA6 1984). Four Circuits have ruled that a defendant may not affirmatively deny committing the elements of the crime if he desires an entrapment instruction. United States v. Annese, 631 F.2d 1041, 1046-1047 (CA1 1980); United States v. Mayo, 705 F.2d 62, 72-73 (CA2 1983); United States v. Dorta, 783 F.2d 1179, 1181 (CA4), cert. denied, 477 U.S. 905 (1986); United States v. Mora, 768 F.2d 1197, 1198-1199 (CA10 1985), cert. denied, 474 U.S. 1083 (1986). One Circuit has declared that a defendant denying the elements of the crime may rely on entrapment if the issue is raised by the Government’s evidence. United States v. Smith, 757 F.2d 1161, 1169 (CA11 1985). Another Circuit has developed a hybrid rule allowing a testifying defendant to contest the intent element of the offense charged, but not the acts, while arguing entrapment. United States v. Henry, 749 F.2d 203 (CA5 1984) (en banc); two Circuits have ruled that a defendant is entitled to an entrapment instruction even if he testifies and denies all elements of the offense. United States v. Demma, 523 F.2d 981 (CA9 1975) (en banc); Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219 (1962). We note also that, even within the Circuits, the decisions have been contradictory and inconsistent.

2. In pursuing this line of defense, petitioner apparently introduced the same evidence that he planned to adduce in support of his entrapment claim.