FREDERICK MATHEWS, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-6109

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
Seventh Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Statutory provision involved
   Question presented
   Statement
   Summary of argument
   Argument:
      Petitioner was not entitled to a jury instruction on the
      defense of entrapment
      A. The evidence at trial was insufficient to raise an
         entrapment defense
      B. A defendant cannot both deny commission of the crime
         and obtain an instruction on entrapment
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 101-108) is reported
at 803 F.2d 325.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 9,
1986.  A petition for rehearing was denied on October 29, 1986.  The
petition for a writ of certiorari was filed on December 27, 1986, and
was granted on March 30, 1987.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISION INVOLVED

   18 U.S.C. 201(g) provides:

         Whoever, being a public official, former public official, or
      person selected to be a public official, otherwise than as
      provided by law for the proper discharge of official duty,
      directly or indirectly asks, demands, exacts, solicits, seeks,
      accepts, receives, or agrees to receive anything of value for
      himself for or because of any official act performed or to be
      performed by him;  * * *

         Shall be fined not more than $10,000 or imprisoned for not
      more than two years, or both.

                          QUESTION PRESENTED

   Whether petitioner was entitled to an entrapment instruction at his
trial.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of Wisconsin, petitioner was convicted of accepting a
gratuity as a public official, in violation of 18 U.S.C. 201(g).  He
was sentenced to a three-year term of probation.  The court of appeals
affirmed (Pet. App. 101-108).

   1. The government's evidence at trial established that petitioner
was responsible for administering the so-called "8A program" of the
Small Business Administration (SBA) in Milwaukee, Wisconsin.  That
program was designed to aid small businesses owned by minorities and
economically disadvantaged individuals.  Under the program, the SBA
would obtain government contracts and subcontract them to
participating firms;  it also would provide assistance to the firms in
performing the contracts, and when necessary it would help
participating firms obtain payment in advance of performance.  Pet.
App. 102;  Tr. 124-125, 127-128, 130-131, 136-137.  Until the time of
his arrest on April 24, 1985, petitioner had primary responsibility
for obtaining 8A program contracts and advance payments for SBA client
firms in Milwaukee, and for assisting those firms with the associated
paperwork.  Tr. 124-125, 127, 131, 135-137.

   One of the long-term participants in the 8A program was Midwest
Knitting Mills (Midwest).  As early as 1979, petitioner had assisted
Midwest's president, James DeShazer, in obtaining financing for his
company (JA. 116).  By 1983, petitioner was Midwest's principal
contact at the SBA (id. at 10-11).  Yet beginning in 1982, petitioner
repeatedly asked DeShazer for money.  When DeShazer was seeking bank
financing in that year, petitioner demanded a $1,200 payment to "get
you a bank" (J.A. 16).  DeShazer did not make that payment, but in
February 1983 petitioner called DeShazer to request a $1,500 loan,
which petitioner said he needed to help pay his daughter's college
expenses.  DeShazer made the loan, which was not repaid (id. at
16-18).  Later that year, petitioner requested an additional $1,200
loan to help meet his mortgage payments.  DeShazer again lent the
money to petitioner, and again was not repaid (id. at 18-19).  /1/

   In February 1984, petitioner and DeShazer met to discuss Midwest's
failure to receive advance payments from the SBA that were necessary
for the performance of its contracts.  At that meeting, petitioner
asked DeShazer for a $3,000 personal loan (J.A. 12-15).  Although
DeShazer refused to make the payment at that time, petitioner repeated
his request for the money on several occasions between February and
July of 1984 (id. at 20, 85, 94).  During that same period, DeShazer
noted that petitioner had failed to process his requests for payment
on Midwest's 8A contracts (id. at 27).  In October 1984, DeShazer
complained to representatives of the Defense Department, one of his
customers, that he believed he was being denied advance payments
because he would not make payoffs to petitioner (id. at 23-24).  The
Defense Department in turn reported this allegation to the Federal
Bureau of Investigation (FBI), which in early 1985 asked DeShazer to
assist an investigation by recording his conversations with
petitioner.  DeShazer agreed.  Id. at 25-27.

   DeShazer and petitioner met in February 1985 (J.A. 29).  At that
meeting, DeShazer offered petitioner the $4,200 he had previously
requested if petitioner would agree to process Midwest's application
for advance payments.  /2/ DeShazer told petitioner that he "want(ed)
to give you that forty-two hundred dollars, if you can assure me that
this is going to solve my problems." Petitioner responded:  "sure, I
am sure that I can do that," adding that the payment would "solve the
problem." J.A. 30-31.  In the following weeks, petitioner and DeShazer
spoke many times about Midwest's financial problems (id. at 32).  The
two met again on April 8 in DeShazer's car.  After a discussion of
DeShazer's prospects for obtaining financing for his company,
petitioner asked, "what can you do for me?" (see id. at 125;  Tr.
508).  Petitioner then referred to DeShazer's statement in February of
that year that he had recently come into a large sum of money.
DeShazer responded that he would pay petitioner in two installments of
$2,100 each.  /3/ And DeShazer again explained to petitioner "the
critical situation that I was in, * * * I kept saying, are you going
to, can you tell me once I do this, this nightmare that I have is
over?  And he told me that it would be." Id. at 38-39.

   Petitioner and DeShazer spoke by telephone on April 23, 1985, and
agreed that DeShazer would make a $2,100 payment the next day (J.A.
41-42).  /4/ After an exchange of calls the following morning, they
agreed to meet in a hotel restaurant (id. at 99-101).  At the hotel,
petitioner asked for the money;  after obtaining petitioner's
assurances that the payment would end Midwest's financial problems,
DeShazer passed the money under the table (id. at 47-49).  Petitioner
was arrested as he left the hotel.

   2. At the outset of trial, the district court ruled that petitioner
would not be permitted to argue entrapment as a defense.  The court
explained that a defendant is entitled to argue entrapment only if he
"concede(s) that what he did was wrong" (J.A. 3).  Because petitioner
denied accepting the payment from DeShazer for the performance of his
official duties -- and thus denied having the requisite mental state
for a violation of 18 U.S.C. 201(g) -- the court ruled that petitioner
could not rely on the defense of entrapment (id. at 3-4).  The court
did, however, permit petitioner "to proceed with the theory, at least,
that the acts of the (petitioner) were procured by the overt acts of
this princip(al) witness of the Government, Mr. DeShazer, and to
develop() that as part of (his) first line of defense" at trial (id.
at 131).

   Petitioner subsequently testified at trial.  While he disputed some
of the particulars of the government's case, /5/ he acknowledged that
he had borrowed money from DeShazer in 1983 (J.A. 119).  He also
acknowledged that he had accepted DeShazer's offer of a loan in
February 1985 (id. at 122);  that whenever the subject was broached
subsequently he had indicated that he was "(still) interested in" the
loan (id. at 123, 125);  and that he had brought up the topic of
DeShazer's offer at their April 8 meeting, stating that "he would
still be willing to accept" the money (id. at 125;  see id. at 123;
Tr. 508-509).  Petitioner also acknowledged that his discussions with
DeShazer about the payment generally followed talk about Midwest's
financial problems.  J.A. 124-125, 127;  Tr. 508.  And petitioner
conceded that he took $2,100 from DeShazer in an under-the-table
payment on April 24, 1985, while telling DeShazer not to mention the
payment to anyone (J.A. 126-127, 129).  Petitioner contended, however,
that he had viewed the loan as a personal one that was not connected
to the performance of his job (id. at 127-130).  He attributed the
two-month delay between the original offer of the loan and the
delivery of the money to his doubts that DeShazer actually had the
money or was "really sincere about the loan" (id. at 126;  see id. at
122, 123, 125, 126).

   At the close of the evidence, the district court declined to give
an entrapment instruction.  Petitioner argued that the court's ruling
on that issue was a ground for a mistrial.  The government opposed
this motion for two reasons, arguing (1) that a defendant may not both
deny commission of the offense and argue entrapment, and (2) that
petitioner had not, in any event, adduced sufficient evidence of
entrapment to warrant an instruction on the issue (Tr. 622).  The
district court found it unnecessary to address the government's second
argument.  Instead, the court ruled that petitioner was not entitled
to an entrapment instruction because he "elected * * * to deny the
intent and the other elements in the (offense)" (J.A. 131).  The court
went on to note, however, that the evidence of entrapment was "shaky a
best," adding that "it would normally require more evidence than what
is presently in the record on which to predicate an entrapment
instruction" (ibid.).  The jury returned a verdict of guilty.

   3. The court of appeals affirmed, holding that petitioner was not
entitled to raise an entrapment defense (Pet. App. 101-108).  /6/ The
court explained that Seventh Circuit precedent "requir(es) a defendant
to admit all elements of the crime before being allowed to plead
entrapment" (id. at 103).  In the court of appeals' view, "(w)hen 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'" (ibid. (quoting
United States v. Russell, 411 U.S. 423, 436 (1973)).  The court found
"this to be inconsistent per se with the defense that the defendant
never had the requisite criminal intent";  the court thus saw "no
reason to allow (petitioner) or any defendant to plead these defenses
simultaneously" (Pet. App. 103).  /7/

                          SUMMARY OF ARGUMENT

   A. The affirmative defense of entrapment may be invoked when "the
Government plays on the weaknesses of an innocent party and beguiles
him into committing crimes which he otherwise would not have
attempted." Sherman v. United States, 356 U.S. 369, 376 (1958).  As
this definition suggests, the entrapment doctrine is designed to
protect "innocent" persons -- those who lack a predisposition to
commit crime -- from overbearing police tactics that are likely to
induce criminal behavior on the part of otherwise law-abiding
citizens.  The entrapment defense thus has two components:  the crime
must have been induced by the government, and the defendant must not
have been predisposed.

   The courts have uniformly held that the government may be said to
have induced an offense only if the police behavior was such that it
would likely have overborne "a law-abiding citizen's will to obey the
law." United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984).
Simple solicitation or initiation of the crime by the government
plainly does not fall within this category, since "'solicitation by
itself is not the kind of conduct that would persuade an otherwise
innocent person to commit a crime'" United States v. Burkley, 591 F.2d
903, 912 (D.C. Cir. 1978) (citation omitted), cert. denied, 440 U.S.
966 (1979).  Instead, as this Court's holdings suggest, inducement can
be made out only if the government used coercion or some other sort
overbearing conduct to instigate the offense.  Conversely, a defendant
who is predisposed -- whose "criminal conduct was due to his own
readiness and not to the persuasion of government agents" (Sherman,
356 U.S. at 376-377) -- cannot claim entrapment.  And obviously, the
surest indication of this sort of predisposition is the defendant's
unhesitating acceptance of the government's criminal offer.

   Because entrapment is an affirmative defense, it need not be
submitted to the jury unless the defendant makes a threshold showing
of inducement and lack of predisposition.  Petitioner plainly failed
to make such a showing in this case.  The "inducement" here was a
simple criminal proposition:  the government's agent offered
petitioner cash in return for official action.  This is hardly the
sort of conduct that would have overborne the will of a normally
law-abiding person.  At the same time, absolutely nothing in
petitioner's reaction to the proposal suggests that he was not
predisposed.  To the contrary, petitioner's eager acceptance of the
offer made it clear beyond dispute, in Judge Friendly's words, that
"the accused was 'ready and willing without persuasion'" to commit the
offense.  United States v. Riley, 363 F.2d 955, 957 (2d Cir. 1966).
Because the evidence at trial thus was insufficient to raise either
element of the defense, the courts below were correct in holding that
petitioner was not entitled to a jury instruction on entrapment.

   B. Petitioner was not entitled to an entrapment instruction for a
second, independent reason:  his express denial of the crime was
inconsistent with his simultaneous claim that he was entrapped into
committing it.  The court below, like a majority of the courts of
appeals, will not permit a defendant both to testify that he did not
commit the crime, and at the same time to argue that the government
entrapped him.  This "inconsistency rule" is a sound one.

   Entrapment is a nonconstitutional affirmative defense that relieves
the defendant of liability for what otherwise would be a crime.
Because the law of entrapment is not governed by any constitutional
principle, and because Congress has not enacted legislation affecting
the defense in any way, the administration of the entrapment defense
has remained principally the responsibility of the courts.  The
courts, in turn, have applied the defense in a way that is consistent
with its underlying purposes and that furthers accuracy in the
truth-seeking process.  Applying their authority to shape the
entrapment defense according to these principles, a great majority of
the courts of appeals have concluded that withholding the defense from
defendants who testify that they did not commit the crime accords most
fully with the "nature of a criminal trial as a search for truth." Nix
v. Whiteside, No. 84-1321 (Feb. 26, 1986), slip op. 8.

   When the defendant denies an element of the offense, he effectively
testifies that he was not entrapped;  if he nevertheless is permitted
to argue entrapment, he will ask the jury to acquit him on a view of
the facts that he himself has testified is not true.  But a defendant,
who has no right to present false testimony, may fairly be held to the
story that he tells under oath.  And if the defendant is expected to
tell the truth when he testifies, there is no justification for
permitting him to seek a windfall acquittal on grounds that are
inconsistent with his stated view of the facts.  In this case, because
petitioner testified that he did not commit the crime, he was not
entitled to an entrapment instruction.

                               ARGUMENT

 PETITIONER WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE DEFENSE OF
ENTRAPMENT

   The government's evidence at trial revealed that an informant,
DeShazer, made a simple criminal proposal to which petitioner readily
acquiesced.  Testifying on his own behalf, petitioner acknowledged
that he unhesitatingly accepted DeShazer's offer of money;  he
maintained, however, that he took the payment as a personal loan,
rather than as recompense for official services.  On this record, two
independent reasons supported the decisions of the courts below to
deny petitioner an entrapment instruction.  An informant's simple
offer of a criminal proposition is not the sort of government action
that has ever been understood to amount to entrapment.  Because
petitioner could point to no more than that in this case, he failed to
make the threshold showing necessary to justify an instruction on the
affirmative defense.  At the same time, petitioner's attempt both to
deny the crime and to argue that the government entrapped him into
committing it -- in effect, stating that "I didn't do it, and anyway
the government made me do it" -- is inconsistent with this Court's
admonition that a criminal trial is ultimately "a search for truth."
Nix v. Whiteside, No. 84-1321 (Feb. 26, 1986), slip op. 8.

 A. The Evidence At Trial Was Insufficient To Raise an Entrapment
Defense

   1. The affrirmative defense of entrapment may be invoked "when the
Government plays on the weaknesses of an innocent party and beguiles
him into committing crimes which he otherwise would not have
attempted." Sherman v. United States, 356 U.S. 369, 376 (1958).  See
Sorrells v. United States, 287 U.S. 435, 446-448 (1932).  The
doctrine, as Judge Learned Hand explained more than 50 years ago,
"derives from a spontaneous moral revulsion against using the powers
of government to beguile innocent, though ductile, persons into lapses
which they might otherwise resist." United States v. Becker, 62 F.2d
1007, 1009 (2d Cir. 1933).  But because the doctrine was created as a
"spontaneous" response to particular prosecutions -- and, perhaps,
because the entrapment defense is not grounded in the Constitution,
/8/ in the common law, /9/ or in any explicit statement by Congress
/10/ -- the Court has never expressly articulated either its purposes
or its boundaries.  See Seidman, The Supreme Court, Entrapment, and
Our Criminal Justice Dilemma, 1981 Sup. Ct. Rev. 111, 127.

   It nevertheless is clear from the Court's treatment of entrapment
claims that two considerations underlie the entrapment doctrine.
First, the Court has concluded that defendants who are induced to
commit crimes by overbearing government conduct -- defendants
repeatedly described by the Court as "unwary innocents" (Sherman, 356
U.S. at 372) /11/ who lack a preexisting "disposition to commit the
alleged offense" (Sorrells, 287 U.S. at 442) -- are in some sense less
culpable than other persons who engage in criminal conduct.  Second,
the Court has viewed as undesirable those police tactics that are
likely to induce criminal behavior on the part of otherwise
law-abiding persons.  Such tactics are offensive because they can lead
to criminal activity by (and the imposition of criminal sanctions
against) persons who, if left to their own devices, might not have
violated the law.  See Park, The Entrapment Controversy, 60 Minn. L.
Rev.1 163, 244 (1976).

   As the Court has recognized, neither of these considerations,
standing alone, is sufficient to defeat a prosecution, and neither is
fully served by the entrapment doctrine in its current form.  /12/
When both considerations are present in a single case, however -- when
the defendant is an "unwary innocent" and the police tactics that
induce the crime are overbearing -- the Court has concluded that the
defense may be invoked.  In a case where coercive government tactics
are directed against persons lacking the predisposition to commit a
crime, the Court has reasoned, the resulting "criminal conduct (is)
'the product of the creative activity' of law enforcement officials,"
and therefore should not be punished.  Sherman, 356 U.S. at 372
(quoting Sorrells, 287 U.S. at 451) (emphasis added in Sherman).  See
United States v. Russell, 411 U.S. at 435-436.  See generally Park,
supra, 60 Minn. L. Rev. at 240-242.  The Court's application of the
entrapment doctrine, in Judge McGowan's words, has thus been directed
at "protecting the otherwise unpredisposed defendant" from police
tactics calculated to lead law-abiding persons into crime.  United
States v. Burkley, 591 F.2d 903, 912 (D.C. Cir. 1978), cert. denied,
440 U.S. 966 (1979) /13/

   2. The policies served by the entrapment doctrine dictate the two
elements that must be present to make out an entrapment claim:
government inducement and a lack of predisposition to engage in the
criminal conduct.  These elements are, of course, closely related.
The nature of a defendant's response to an inducement -- his readiness
to commit the crime at the government's invitation -- obviously bears
on whether he is predisposed, rather than an undisposed "innocent."
The nature of the inducement, in turn, may help dictate the
defendant's response.  See United States v. Hunt, 749 F.2d 1078, 1085
n.9 (4th Cir. 1984), cert. denied, 472 U.S. 1018 (1985);  United
States v. Nations, 764 F.2d 1073, 1079 (5th Cir. 1985).  Both elements
therefore are ultimately concerned with the single question whether
the government "implant(ed) in the mind of an innocent person the
disposition to commit the alleged offense" (Sorrells, 287 U.S. at
442).  Yet because inducement focuses on the government's conduct,
while predisposition is concerned with the defendant's state of mind,
it is convenient to consider the two elements separately.

   a. The courts have uniformly held that the government may be said
to have induced an offense only if the "behavior (of law enforcement
agents) was such that a law-abiding citizen's will to obey the law
could have been overborne" (United States v. Kelly, 748 F.2d 691, 698
(D.C. Cir. 1984)) -- if, in other words, there was "government conduct
that would create a risk of causing an otherwise unpredisposed person
to commit the crime charged" (Burkley, 591 F.2d at 914).  /14/ Thus,
again in Judge McGowan's words, "mere government solicitation or
initiation (of the crime) is, without more, insufficient to raise the
entrapment defense";  that conclusion "rests on the not unreasonable
behavioral assumption that 'solicitation by itself is not the kind of
conduct that would persuade an otherwise innocent person to commit a
crime'" (id. at 911-912 (quoting United States v. DeVore, 423 F.2d
1069, 1071 (4th Cir. 1970), cert. denied, 402 U.S. 950 (1971)).

   The validity of this conclusion is confirmed by this Court's
holdings.  In its earliest consideration of the issue, the Court
rejected assertions of the entrapment defense when the defendant "was
in no way induced to commit the crime beyond the simple request of (a
government informant)." Casey v. United States, 276 U.S. 413, 419
(1928).  See Grimm v. United States, 156 U.S. 604, 609-610 (1895).
/15/ And in its first lengthy treatment of entrapment, the Court made
it clear that "the defense of entrapment is not simply that the
particular act was committed at the instance of government officials"
(Sorrells, 287 U.S. at 451).  To the contrary, the Court pronounced it
"well settled that the fact that officers or employees of the
Government merely afforded opportunities or facilities for the
commission of the offense does not defeat the prosecution" (id. at
441).  "Artifice and strategem," the Court explained, are "frequently
essential to the enforcement of the law" (ibid.).  See Russell, 411
U.S. at 435-436;  Sherman, 356 U.S. at 372;  cf. Lopez v. United
States, 373 U.S. 427, 436 (1963).  /16/ In the succeeding years, the
courts of appeals have uniformly agreed that an entrapment defense
cannot be raised when a government agent does no more than initiate
the criminal transaction by offering the defendant money, soliciting
contraband, or proposing the crime, since such conduct "merely
afford(s) (the defendant) with the opportunity to commit an offense he
was not otherwise unready to commit." United States v. Luce, 726 F.2d
47, 49 (1st Cir. 1984).  /17/

   Instead, the courts have held that inducement can be established
only by a showing of at least "'persuasion or mild coercion' and
'pleas based on need, sympathy, or friendship'" (United States v.
Nations, 764 F.2d at 1080 (citations omitted)).  /18/ Again, this
Court's holdings are illustrative.  In finding an entrapment defense
available in Sorrells, a prosecution for a violation of the National
Prohibition Act (see 287 U.S. at 438), the Court noted that an
undercover agent had made repeated requests for liquor despite the
defendant's obvious reluctance to supply it (id. at 439-440);  the
Court found it crucial that the defendant's ultimate decision to
provide the liquor was "instigated by the prohibition agent * * * by
repeated and persistent solicitation in which (the agent) succeeded by
taking advantage of the sentiment aroused by reminiscences of their
experiences as companions in arms in the World War" (id. at 441).
Similarly, the Court held that entrapment was established in Sherman,
where a reluctant defendant provided narcotics to an informant only
after repeated requests "predicated on (the informant's) presumed
suffering" (356 U.S. at 371;  see id. at 373).  In contrast, the Court
found no inducement where the defendant responded to an informant's
"simple request" for narcotics.  Casey, 276 U.S. at 419.  /19/

   b. Whatever the inducement offered by the government, a defendant
is not entrapped when his "criminal conduct was due to his own
readiness and not to the persuasion of government agents" (Sherman,
356 U.S. at 376-377) -- when, that is, the defendant was predisposed
to engage in the criminal activity.  The Court has treated such
persons, who "needed no persuasion" to commit the crime (Masciale v.
United States, 356 U.S. 386, 388 n.3 (1958)), as fully culpable.  In
part, of course, this predisposition inquiry is the flip side of the
inducement question, since a defendant may suggest the absence of
predisposition "by demonstrating that he had not favorably received
the government plan, and the government had to 'push it' on him, or
that * * * on at least one occasion he had directly refused to
participate" (United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir.
1985), cert. denied, No. 85-5572 (Jan. 13, 1986)).  But the existence
of predisposition does not hinge solely on the objective nature of the
government's action:  it turns on whether the defendant was "ready and
willing to commit the crime" when it was proposed (Burkley, 591 F.2d
at 916 (emphasis in original)).  Cf. Russell, 411 U.S. at 433.

   Obviously, the surest indication of this sort of predisposition is
the defendant's unhesitating acceptance of the government's criminal
offer -- or, as Judge Learned Hand described it, the defendant's
"'willingness to (commit the offense), as evinced by ready
complaisance'" (United States v. Sherman, 200 F.2d 880, 882 (2d Cir.
1952) (quoting Becker, 62 F.2d at 1008)).  See United States v. Riley,
363 F.2d 955, 959 (2d Cir. 1966) (Friendly, J.) (predisposition
present when "the accused was 'ready and willing without persuasion'
and (was) 'awaiting any propitious opportunity to commit the
offense'").  /20/ In such a case, the defendant's ready acceptance of
a criminal offer makes it clear that he was "of a frame of mind such
that once his attention (was) called to the criminal opportunity, his
decision to commit the crime (was) the product of his own preference
and not the product of government persuasion" (United States v.
Williams, 705 F.2d 603, 618 (2d Cir.), cert. denied, 464 U.S. 1007
(1983)).  Thus, to take just one example, "the very acceptance of a
bribe by a public official may be evidence of a predisposition to do
so whenever the opportunity is presented" (United States v. Jannotti,
673 F.2d 578, 603 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106
(1982)).  See Tzimopolous v. United States, 554 F.2d 1216, 1217 (1st
Cir.), cert. denied, 434 F.2d 851 (1977).

   3. Affirmative defenses such as entrapment need not be submitted to
the jury unless "the testimony given or proffered meets a minimum
standard as to each element of the offense." United States v. Bailey,
444 U.S. 394, 314 (1980);  see id. at 416.  Indeed, while the Court
has never had occasion to apply this rule directly in an entrapment
case, it has found it obvious that an inadequate showing by the
defendant "might well * * * justif(y) a refusal to instruct the jury
at all on entrapment" (Lopez, 373 U.S. at 436 (footnote omitted)).
The courts of appeals therefore have held without exception that the
defendant is not entitled to an entrapment instruction unless he
"come(s) forward with evidence 'that the government's conduct created
a substantial risk that the offense would be committed by a person
other than one ready to commit it.'" United States v. Bagnell, 679
F.2d 826, 834 (11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983)
(citation omitted).  /21/ And given the nature of the entrapment
defense, it is not surprising that the courts have required a showing
of "inducement by a government agent and a lack of predisposition by
the defendant" before submitting an entrapment claim to the jury.
United States v. Rhodes, 713 F.2d 463, 467 (9th Cir.) (emphasis in
original), cert. denied, 466 U.S. 1012 (1983).  /22/

   4. In this case, petitioner plainly failed to make the threshold
showing of either inducement or lack of predisposition that would have
justified submitting the entrapment issue to the jury.  Even viewing
the evidence in the light most favorable to petitioner, it is evident
that the "inducement" in this case was a simple criminal proposition:
the government's agent, DeShazer, offered petitioner cash in return
for official action.  As the Court put it in Casey, petitioner "was in
no way induced to commit the crime beyond the simple request of (the
agent) to which he seems to have acceded without hesitation and as a
matter of course" (276 U.S. at 419).  /23/ While the transction was
not consummated immediately because of petitioner's doubts that
DeShazer actually had the money, in none of their subsequent
conversations did DeShazer do more than restate his willingness to
make the payment, a proposal to which petitioner readily agreed;
indeed, petitioner acknowledged that at the April 8, 1985, meeting, he
was the one who brought up the subject of the payment.

   Petitioner argued in the court of appeals that "DeShazer did more
than merely provide the opportunity;  he persuaded, begged, and
encouraged (petitioner) to take (the money)" (Pet. C.A. Reply Br. 3;
see Pet. C.A. Br. 2).  This contention is entirely unsupported by the
record.  While DeShazer made several offers, petitioner's own
testimony indicates that he unhesitatingly accepted each one (see J.A.
122, 123, 125, 127).  DeShazer at no point "persuaded" or "begged"
petitioner to do anything.  Indeed, since petitioner contended at
trial that he intended only to borrow the money because he was
"financially strapped" (J.A. 123), it would have been nonsensical for
him to have suggested that petitioner begged him to take a loan.  And
the only "encouragement" offered by DeShazer was the suggestion that
he might spend the money himself if he did not give it to petitioner
(see id. at 69).  That is hardly an "inducement" within the meaning of
this Court's decisions:  placing a time limit on a criminal
proposition is not the sort of government action that would induce a
normally law-abiding citizen to engage in criminal conduct.  /24/

   In this case, then, the government did not make use of coercion,
threats, pleas based on need or sympathy, or, for that matter, even
simple persuasion.  The transaction here consisted of an offer and an
acceptance.  In these circumstances, the government's action plainly
was not "such that a law-abiding citizen's will to obey the law could
have been overborne" (Kelly, 748 F.2d at 698).  "At the most,"
DeShazer's proposal "afforded the petitioner 'opportunitiess or
facilities' for the commission of a criminal offense, and that is a
far cry from entrapment." Osborn v. United States, 385 U.S. 323,
331-332 (1966).

   At the same time, petitioner failed to create any doubt whatsoever
about his predisposition to commit the crime.  Even leaving aside
petitioner's previous requests for loans and his conceded acceptance
of money from DeShazer in 1983, petitioner at no point disputed
DeShazer's testimony that he accepted the first and every subsequent
offer of a payoff without hesitation.  To the contrary, petitioner
acknowledged that he expressed interest whenever DeShazer raised the
possibility of a payment, and he conceded that he himself made an
unsolicited inquiry about the payment on April 8, 1985.  Petitioner
contended only that he did not have an improper motive in taking the
money -- a contention that was necessarily rejected by the jury.
"'(U)ncontradicted evidence'" thus "established that the accused was
'ready and willing without persuasion'" to commit the offense (Riley,
363 F.2d at 958).  A person who jumps at a criminal opportunity in
that way can hardly be characterized as an "unwary innocent" (Sherman,
356 U.S. at 372).

   For these reasons, the evidence at trial was not sufficient to
raise either element of the defense of entrapment.  The district court
was therefore correct in refusing petitioner's request to instruct the
jury on that defense.

 B. A Defendant Cannot Both Deny Commission Of The Crime And Obtain An
Instruction On Entrapment

   1. At trial, petitioner denied committing the crime;  he took the
stand and testified that he accepted money from DeShazer as a personal
loan, rather than "for or because of any official act" (18 U.S.C.
201(g)).  Despite petitioner's hints to the contrary (Pet. Br. 15-16),
this defense necessarily was inconsistent with his simultaneous claim
that he was entrapped.

   As we have noted, entrapment "is a relatively limited defense" that
is grounded "in the notion that Congress could not have intended
criminal punishment for a defendant who has committed all the elements
of a proscribed offense, but was induced to commit them by the
Government" (Russell, 411 U.S. at 435 (emphasis added)).  By
definition, the entrapment defense comes into play "only when the
Government's deception actually implants the criminal design in the
mind of the defendant" (id. at 436).  See Sorrells, 287 U.S. at 442.
/25/ The definition of entrapment therefore presupposes that all the
elements of the offense are present and that the defendant acted with
a "criminal design." As a logical matter, then, the jury can find that
a defendant was entrapped only if it finds that a crime was in fact
committed.  This means that by seeking an entrapment instruction while
denying commission of the crime, petitioner was "claim(ing) 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, 2114 (5th Cir. 194) (en banc) (Gee, J.,
dissenting).  Needless to say, both of these assertions cannot be
true.

   2. a. For more than 60 years -- even prior to the recognition of
the entrapment defense by this Court in Sorrells /26/ -- it has been
the rule in most circuits that a defendant cannot take inconsistent
positions by simultaneously denying commission of the crime and
arguing entrapment to the jury.  That is now the approach taken by a
substantial majority of the courts of appeals.  At present, it appears
that three circuits bar the assertion of an entrapment defense unless
the defendant affirmatively admits commission of the crime.  /27/
Another five circuits have held that the defendant may not both deny
commission of the crime and argue entrapment, although those courts
foreclose the defendant from seeking an entrapment instruction only if
he offers evidence contesting the elements of the offense.  /28/ Only
two courts of appeals permit the defendant to testify (or introduce
other evidence) contesting the existence of an element of the offense
while simultaneously arguing entrapment to the jury.  /29/ One other
circuit permits a defendant to deny the existence of the mental
element of the offense, although not the criminal acts, while arguing
entrapment.  /30/

   In our view, the majority rule -- which prevents the defendant from
simultaneously denying the crime while arguing that (if the crime was
committed) he was entrapped into committing it -- is the sounder one.
At the outset, petitioner is plainly correct in asserting (Pet. Br.
10, 14-15) that there is any constitutional informity in such a rule.
The government, of course, bears the burden of proving every element
of the offense beyond a reasonable doubt.  But the entrapment defense
is not constitutionally grounded (see Russell, 411 U.S. at 433), and
the absence of entrapment is not an element of any offense.  Instead,
entrapment is a court-created affirmative defense that relieves the
defendant of liability for what otherwise would be a crime.  And since
entrapment comes into play only when all the elements of the crime
have been established, its existence does not "serve to negative any
facts of the crime which the (government) is to prove in order to
convict." Patterson v. New York, 432 U.S. 197, 207 (1977).  See Martin
v. Ohio, No. 85-6461 (Feb. 25, 1987), slip op. 6-7.

   In this setting, Congress would be free to make the entrapment
defense available on whatever conditions, and to whatever category of
defendants, it believed appropriate (see generally Martin, slip op.
4-7;  Patterson, 432 U.S. at 206-208) /31/ -- just as it could redraw
the substance of the entrapment doctrine or, for that matter,
eliminate the entrapment defense altogether.  See generally Russell,
411 U.S. at 433.  /32/ In the absence of any explicit congressional
statement, it is for the courts to formulate rules governing the
availability of entrapment.  /33/ The courts have done so in a manner
that is responsive both to the policies underlying the entrapment
defense and to society's interest in furthering the accuracy of the
truth-finding process at trial.

   b. As its lengthy pedigree and wide acceptance suggest, the rule
preventing defendants from simultaneously asserting entrapment and
denying commission of the crime is not at odds with the policies
underlying the entrapment defense, and it most fully accords with what
this Court has described as "the very nature of a trial as a search
for truth." Nix v. Whiteside, No. 84-1321 (Feb. 26, 1986), slip op. 8.
 In the absence of an independent constitutional imperative permitting
him to do so, a defendant is not free to present evidence or arguments
to the jury that fail to advance the trial's function of establishing
factual guilt or innocence.  The defendant may not, for example,
introduce irrelevant evidence;  similarly, as we explain above, a
defendant may not argue (or present evidence relating to) an
affirmative defense that is factually insupportable (see Bailey, 444
U.S. at 416-417) or not legally cognizable (see United States v.
Eberhardt, 417 F.2d 1009, 1012 (4th Cir. 1969), cert. denied, 397 U.S.
909 (1970)) -- even if doing so might increase his chances of
acquittal.

   Permitting the defendant to argue entrapment after taking the stand
and denying commission of the crime detracts in precisely the same way
from "the integrity and truth-finding function of our criminal
trials." United States v. Dorta, 783 F.2d 11789, 1181-1182 (4th Cir.
1986), cert. denied, No. 85-1713 (June 23, 1986).  When he denies an
element of the offense, the defendant in effect testifies that he was
not entrapped;  in this case, for example, the government could hardly
have "implant(ed) the criminal design" (Russell, 411 U.S. at 436) in
petitioner's mind if, as petitioner testified, a criminal design never
existed.  If petitioner nevertheless obtained an entrapment
instruction, he effectively would be asking the jury to acquit him on
a view of the facts that he himself has testified is not true.  See
Note, Entrapment and the Denial of the Crime:  A Defense of the
Inconsistency Rule, 1986 Duke L.J. 866, 883-884.

   Such an approach "is redolent of the sporting theory of justice"
(Henry, 749 F.2d at 215 (Gee, J., dissenting)).  "(T)here is no right
whatever -- constitutional or otherwise -- for a defendant to use
false evidence" (Nix, slip op. 15);  once "(h)aving voluntarily taken
the stand, (a defendant is) under an obligation to speak truthfully"
(Harris v. New York, 401 U.S. 222, 225 (1971).  See Nix, slip op. 9-10
(Blackmun, J., concurring in the judgment).  A defendant therefore may
fairly be held to the story that he tells under oath.  And if the
defendant is expected to tell the truth when he testifies, there is no
justification for permitting him to seek a windfall acquittal on
grounds that are inconsistent with his stated view of the facts.  Cf.
Strickland v. Washington, 466 U.S. 668, 695 (1984).  /34/ "'A criminal
prosecution * * * is not a game.  It incorporates a moral content and
an ultimate concern with guilt or innocence that are inconsistent with
permitting the accused to say, "I didn't do it, but if I did, the
government tricked me into it'" (Dorta, 783 F.2d at 1182 (citation
omitted)).  Accordingly, at least where the defendant offers evidence
contesting commission of the crime, he should not be entitled to an
entrapment instruction at trial.  /35/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   CHARLES A. ROTHFELD

      Assistant to the Solicitor General

   AUGUST 1987

   /1/ DeShazer also lent petitioner an additional $200 in 1983 (J.A.
20).  The existence of all of these loans was confirmed by a 1984
letter from DeShazer to petitioner requesting repayment (GX 13).
After DeShazer sent this letter, petitioner made one repayment in the
amount of $200 (J.A. 50-51).

   /2/ The $4,200 represented the $1,200 petitioner had requested in
1982 and the $3,000 he had requested in February 1984.

   /3/ The tape recording of this conversation -- in which petitioner
asked, "so, what can you do for me, man?" -- was played for the jury
and was admitted into evidence as Government Exhibit 1.

   /4/ In this conversation, DeShazer asked if petitioner was still
interested in the payment;  petitioner responded, "I'm just waiting
for your lead." The tape recording of this conversation, which was
played for the jury, was admitted into evidence as Government Exhibit
2.

   /5/ Petitioner asserted that he had asked for and borrowed money
from DeShazer only once prior to April 1985 and that he had partially
repaid that loan (J.A. 119).  He also testified that as of January
1984 he did not have full responsibility for the 8A program (id. at
120), and that he had in fact fully processed Midwest's request for
advance payment (id. at 124).

   /6/ At points, petitioner appeared to base his challenge in the
court of appeals on the district court's initial ruling that he would
not be permitted to argue entrapment.  See Pet. C.A. Br. 14.
Petitioner did not point to any evidence bearing on the entrapment
issue that he believed to have been erroneously excluded as a
consequence of this ruling, however, and it appears that his real
challenge was to the district court's refusal to instruct the jury on
entrapment at the close of the case.  See id. at 20, 23;  Pet. C.A.
Reply Br. 3-4.

   /7/ The court of appeals also rejected petitioner's argument that
the government had exercised its peremptory challenges in a
discriminatory way in striking prospective jurors (Pet. App. 105-108).
 This Court denied certiorari on petitioner's challenge to that aspect
of the decision below.

   /8/ See United States v. Russell, 411 U.S. 423, 433 (1973).

   /9/ Entrapment is not recognized as a defense in England (see
Barlow, Entrapment and the Common Law:  Is There a Place for the
American Doctrine of Entrapment, 41 Mod. L. Rev. 266 (1978);  Defeo,
Entrapment as a Defense to Criminal Responsibility:  Its History,
Theory and Application, 1 U.S.F. L. Rev. 243, 247 (1967)), and was
rejected by American courts in the nineteenth and early twentieth
centuries (see, e.g., People v. Mills, 178 N.Y. 274, 70 N.E. 786
(1904)).

   /10/ A majority of the Court has found the entrapment defense
implicit in criminal statutes, reasoning that it could not have been
"the intention of the Congress in enacting (a given) statute that its
processes of detection and enforcement should be abused by the
instigation by government officials of an act on the part of persons
otherwise innocent in order to lure them to its commission and to
punish them." Sorrells, 287 U.S. at 446-448.  See Sherman, 356 U.S. at
372.

   /11/ See also United States v. Russell, 411 U.S. at 434-435;
Sherman, 356 U.S. at 376;  Sorrells, 287 U.S. at 442, 446-448.

   /12/ On the one hand, persons who are induced to commit criminal
acts by third parties are not ordinarily regarded as nonculpable:  a
person led into criminal conduct by a private actor rather than by a
government agent may not claim entrapment, or for that matter argue
that his conduct is "less criminal" because it was induced by another.
 Sherman, 356 U.S. at 380 (Frankfurter, J., concurring in the result).
 See United States v. Rhodes, 713 F.2d 463, 467 (9th Cir.), cert.
denied, 4664 U.S. 1012 (1983);  United States v. Perl, 584 F.2d 1316,
1320-1321 (4th Cir. 1978), cert. denied, 439 U.S. 1130 (1979);
Holloway v. United States, 432 F.2d 775, 776 (10th Cir. 1970).  On the
other hand, it is impossible to determine in any given case whether a
defendant would have remained law-abiding had it not been for the
government inducement, since "the very fact that an entrapped
defendant accepts an inducement conclusively proves that he poses a
risk of committing the offense whenever a similar inducement might be
offered in the future." Seidman, supra, 1981 Sup. Ct. Rev. at 141.

   /13/ The Court has made it clear that "the principal element in the
defense of entrapment" is "the defendants' predisposition to commit
the crime" (Russell, 411 U.S. at 433).  Indeed, a finding that the
defendant was predisposed is fatal to an entrapment defense.  See id.
at 436;  Hampton v. United States, 425 U.S. 484, 488-489 (1976)
(plurality opinion);  id. at 492 n.2 (Powell, J., concurring in the
judgment).  See generally United States v. Ortiz, 804 F.2d 1161, 1165
(10th Cir. 1986);  United States v. Dion, 762 F.2d 674, 684 (8th Cir.
1985), rev'd on other grounds, No. 85-246 (June 11, 1986);  United
States v. Hunt, 749 F.2d 1078, 1085 (4th Cir. 1984), cert. denied, 472
U.S. 1018 (1985).

   /14/ See, e.g., United States v. Hawkins, No. 87-1072 (7th Cir.
June 17, 1987), slip op. 9;  United States v. Ortiz, 804 F.2d 1161,
1165 (10th Cir. 1986);  United States v. Nations, 764 F.2d at 1079;
United STates v. Henry, 749 F.2d 203, 207 n.5 (5th Cir. 1984) (en
banc).

   /15/ In Casey, the defendant provided morphine at the request of a
government informant (see 276 U.S. at 422 (Brandeis, J., dissenting)).
 Although the defendant failed to make an entrapment argument, the
Court specifically suggested that such a defense would be unavailable,
explaining that the defendant "was in no way induced to commit the
crime beyond the simple request of (the informant) to which he seems
to have acceded without hesitation and as a matter of course" (id. at
419).  The government's initiation of the transaction, the Court
added, was no different in substance from an agent's "ordering a drink
(from) a suspected bootlegger" (ibid.).  In Grimm, a government
official solicited information about obscene materials through the
mails;  the defendant was prosecuted when he responded to this
solicitation.  The Court rejected the defendant's challenge to the
prosecution -- even though the illegal material was "deposited in the
mails at the instance of the government" -- because the government's
action had been taken "to ascertain whether the defendant was engaged
in an unlawful business" (156 U.S. at 609-610).

   /16/ The Court has recognized that the use of undercover techniques
is essential in combatting narcotics offenses and consensual crimes.
See Russell, 411 U.S. at 432;  Hampton v. United States, 425 U.S. 484,
495 n.7 (1976) (Powell, J., concurring in the result);  Park, supra,
60 Minn. L. Rev. at 164.

   /17/ See, e.g., DeVore, 423 F.2d at 1071;  United States v.
Sarmiento, 786 F.2d 665, 667 (5th Cir. 1986);  United States v.
Rodgers, 755 F.2d 533, 550 (7th Cir. 1985), cert. denied, 473 U.S. 907
(1985);  United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986);
 United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985), cert.
denied, No. 85-5572 (Jan. 13, 1986).

   /18/ See, e.g., Kadis v. United States, 373 F.2d 370, 374 (1st Cir.
1967);  DeVore, 423 F.2d at 1071;  United States v. Jackson, 700 F.2d
181, 191 (5th Cir.), cert. denied, 464 U.S. 842 (193);  United States
v. McLernan, 746 F.2d 1098, 1113-1114 (6th Cir. 1984);  United States
v. Bagnell, 679 F.2d 826, 835 (11th Cir. 1982), cert. denied, 460 U.S.
1047 (1983).  See generally Park, supra, 60 Minn. L. Rev. at 180-183.
Citing a circuit jury instruction, Judge McGowan suggested that
inducement includes "'persuasion, fraudulent representations, threats,
coercive tactics, harassment, promises of reward, or pleas based on
need, sympathy, or friendship.  A solicitation, request or approach by
law enforcement officials to engage in criminal activity, standing
alone, is not an inducement.'" Burkley, 591 F.2d at 913 & n.18.  It is
clear, however, that "'promises of reward'" do not include simple
offers of gain through participation in an illegal activity, since law
enforcement officers "'may properly offer to give to the defendant
money which is involved in the commission of the crime itself'"
(ibid.).  See id. at 914.

   /19/ The only court to take a different approach is the Second
Circuit, which has defined inducement to include "soliciting,
proposing, initiating, broaching or suggesting the commission of the
offense charged." United States v. Sherman, 200 F.2d 880, 883 (2d Cir.
1952).  At the same time, however, the Second Circuit has held that
"even when inducement (is) shown, submission (of the entrapment
question) to the jury is not required if uncontradicted proof has
established that the accused was 'ready and willing without
persuasion' and to have been 'awaiting any propitious opportunity to
commit the offense'" United States v. Riley, 363 F.2d 955, 958-959 (2d
Cir. 1966).  As Judge McGowan has noted, "(t)he practical effect of
Riley is to require something more than government solicitation or
initiation, but to do so in terms of predisposition rather than in
terms of inducement" (Burkley, 591 F.2d at 913).

   /20/ Accord United States v. Luce, 726 F.2d 47, 49 (1st Cir. 1984);
 United States v. Mayo, 705 F.2d 62, 69 (2d Cir. 1983);  United States
v. Hunt, 749 F.2d 1078, 1085 (4th Cir. 1984), cert. denied, 472 U.S.
1018 (1985);  United States v. Christopher, 488 F.2d 849, 850 (9th
Cir. 1973);  United States v. Rhodes, 713 F.2d 463, 467 (9th Cir.),
cert. denied, 464 U.S. 1012 (1983);  United States v. Ortiz, 804 F.2d
1161, 1166 (10th Cir. 1986);  Burkley, 591 F.2d at 916.

   /21/ Most courts have held that the defendant has the burden of
producing evidence on inducement, which, when satisfied, obligates the
government to prove predisposition.  See 1 W. LaFave & A. Scott,
Substantive Criminal Law, Section 5.2(4) (1986).  Other courts,
however, have collapsed the inquiry, holding that inducement and
predisposition are ultimately concerned with the single question
whether the defendant was prepared to commit the crime in the absence
of the government conduct.  See, e.g., Kadis v. United States, 373
F.2d 370, 373-374 (1st Cir. 1967);  United States v. Devore, 423 F.2d
1069, 1071 (4th Cir. 1970), cert. denied, 402 U.S. 950 (1971).  But
this distinction in approach is, to a large degree, semantic:  because
the concepts of inducement and predisposition are so closely related,
every court requires some evidence that an innocent and reluctant
defendant was corrupted by the government before sending the
entrapment issue to the jury.

   /22/ See, e.g., United States v. Luce, 726 F.2d 47, 49 (1st Cir.
1984);  United States v. Anglada, 524 F.2d 296, 298 (2d Cir. 1975);
United States v. Armocida, 515 F.2d 49, 55 (3d Cir.), cert. denied,
423 U.S. 858 (1975);  United States v. Hunt, 749 F.2d 1078, 1085 (4th
Cir. 1984), cert. denied, 472 U.S. 1018 (1985);  United States v.
Nations, 764 F.2d 1073, 1079 (5th Cir. 1985);  United States v.
Hawkins, No. 87-1072 (7th Cir. June 17, 1987), slip op. 8-10;  United
States v. Woosley, 761 F.2d 445, 448 (8th Cir. 1985);  United States
v. Goodacre, 793 F.2d 1124, 1125-1126 (9th Cir. 1986), cert. denied,
No. 86-5704 (Dec. 1, 1986);  United States v. Ortiz, 804 F.2d 1161,
1165 (10th Cir. 1986);  United States v. Humphrey, 670 F.2d 153, 155
(11th Cir.), cert. denied, 456 U.S. 1010 (1982);  United States v.
Brooks, 567 F.2d 134, 138 (D.C. Cir. 1977);  id. at 142 (Robinson, J.,
dissenting).

   /23/ It is doubtful that a simple offer of money in any amount can
qualify as an inducement of a sort sufficient to constitute
entrapment;  law-abiding persons are expected to resist temptation
when unaccompanied by coercion or other kinds of pressure.  But it is
clear, in any event, that the offer of $4,200 to a defendant making an
annual salary of $38,000 (see Tr. 491) did not impose undue pressure,
particularly where, as here, the amount was simply the sum that the
defendant himself had previously solicited.  Cf. United States v.
Lambinus, 747 F.2d 592, 598 (10th Cir. 1984), cert. denied, 471 U.S.
1067 (1985);  United States v. Jannotti, 673 F.2d 578, 599 (3d Cir.)
(en banc), cert. denied, 457 U.S. 1106 (1982).

   /24/ Petitioner also contended in the court of appeals (Pet. C.A.
Reply Br. 3) that DeShazer urged him "to take the excess money so that
DeShazer would not get into trouble with his wife." In fact, however,
DeShazer indicated (according to petitioner's trial testimony (see
J.A. 122)) only that he kept the money from which the payment would be
made in his garage because "he didn't want his wife to know about the
total amount." Not surprisingly, DeShazer did not make the incredible
statement that he would get into trouble with his wife unless
petitioner took a payoff.

   /25/ The Court in Sorrells reversed the holding of the court of
appeals that "entrapment can be maintained only where, as a result of
inducement, the accused is placed in the attitude of having committed
a crime which he did not intend to commit, or where, by reason of the
consent implied in the inducement, no crime has in fact been
committed" (287 U.S. at 442 (citing 57 F.2d at 974)).  One commentator
has therefore observed that "(a) defendant who has not committed a
criminal act with the requisite criminal intent cannot have been
entrapped under federal law." Note, Entrapment and the Denial of the
Crime:  A Defense of the Inconsistency Rule, 1986 Duke L.J. 866, 889
(footnote omitted);  see id. at 889 n.206.

   /26/ See, e.g., Nutter v. United States, 289 F. 484, 485 (4th Cir.
1923).

   /27/ These are the Third, Sixth, and Seventh Circuits.  See United
States v. Hill, 655 F.2d 512, 514 (3d Cir. 1981);  United States v.
Whitley, 734 F.2d 1129, 1139 (6th Cir. 1984);  United States v.
Liparota, 735 F.2d 1044, 1048 (7th Cir. 1984), rev'd on other grounds,
471 U.S. 419 (1985).

   /28/ These are the First, Second, Fourth, Tenth, and Eleventh
Circuits.  See United States v. Annese, 631 F.2d 1041, 1046 (1st Cir.
1980);  United States v. Mayo, 705 F.2d 62, 72-73 (2d Cir. 1983);
United States v. Dorta, 783 F.2d 1179 (4th Cir. 1986), cert. denied,
No. 85-1713 (June 23, 1986);  United States v. Mora, 768 F.2d 1197,
1198-1199 (10th Cir. 1985), cert. denied, No. 85-5437 (Jan. 21,
11986);  United States v. Smith, 757 F.2d 1161, 1169 (11th Cir. 1985).
 In addition, the Eighth Circuit has endorsed this approach in dictum.
 United States v. Kutrip, 670 F.2d 870, 876 (8th Cir. 1982).

   /29/ These are the Ninth and District of Columbia Circuits.  See
United States v. Demma, 523 F.2d 981, 9820985 (9th Cir. 1975) (en
banc);  Hansford v. United States, 303 F.2d 219, 221 (D.C. Cir. 1962).

   /30/ United States v. Henry, 749 F.2d 203, 207-214 (5th Cir. 1984)
(en banc).

   /31/ Petitioners' reliance (Pet. Br. 14) on Simmons v. United
States, 390 U.S. 377 (1968), and Griffin v. United States, 380 U.S.
609 (1965), which respectively involved the forced waiver of a
constitutional right and prosecutorial action that burdened the
exercise of a constitutional right, is thus entirely misplaced.
Because the entrapment defense is not "of a constitutional dimension"
(Russell, 411 U.S. at 433), no constitutional guarantees are
implicated if the defense is made available only to defendants who do
not contest their guilt.

   /32/ The Ninth Circuit's decision that a defendant may introduce
evidence contesting the existence of the crime while simultaneously
arguing entrapment, United States v. Demma, 523 F.2d 981 (9th Cir.
1975) (en banc), predated and cannot be reconciled with this Court's
holdings in Martin v. Ohio, supra, and Patterson v. New York, supra.
The Ninth Circuit (like petitioner, see Pet. Br. 12, 21-22) reasoned
that the inconsistency rule somehow conflicts with the holding in
Sorrells that entrapment may be raised by a plea of not guilty (see
287 U.S. at 452);  the Demma court relied on Sorrells for the
proposition that "non-entrapment is an essential element of every
federal crime which is put in issue whenever evidence is introduced by
the Government to commit the acts charged" (523 F.2d at 983).  In
fact, however, affirmative defenses generally may be raised by a not
guilty plea (see generally Fed. R. Crim. P. 11, 12).  And as the cases
cited in text demonstrate, that procedural fact does not make the
absence of any given affirmative defense an element of the crime that
must be proved by the government.  Congress thus retains the right to
make affirmative defenses available on the terms that it sees fit.
The Ninth Circuit also relied on what it believed to be the general
proposition that inconsistent defenses are permitted in criminal cases
(523 F.2d at 985 & n.6).  Perhaps because the issue arises
infrequently outside of the entrapment setting, however, the general
propriety of inconsistent defense arguments is far from settled.  See
Note, Entrapment and the Denial of Crime:  A Defense of the
Inconsistency Rule, 1986 Duke L.J. 866, 878-879 & n.127.  In any
event, authority involving inconsistent defense arguments concerning
the existence of elements of the offense (see, e.g., Johnson v. United
States, 426 F.2d 651, 653 n.3, 656 (D.C. Cir. 1970) (en banc) (rape
defendant both denies act and argues consent)) -- as to which the
government bears the burden of proof -- has no bearing on the
determination by Congress or the courts as to whether particular
inconsistent affirmative defenses will be permitted.

   /33/ Fed. R. Civ. P. 8(e)(2) permits parties in civil actions to
plead alternative theories;  there is no parallel provision in the
criminal rules.

   /34/ Presumably, a defendant who denies the crime while arguing
entrapment hopes to benefit from either a "lawless" (Strickland, 466
U.S. at 695) or a confused jury.  Indeed, the courts have noted that a
denial of the crime combined with a claim of entrapment inevitably
"will tend to 'confuse' the jury due to the 'inherent inconsistency'
in saying at the same time that 'I didn't do it,' and 'the government
tricked or seduced me into doing it.'" United States v. Garrett, 716
F.2d 257, 270 (5th Cir. 1983) (citations omitted), cert. denied, 466
U.S. 937 (1984).  See Note, supra, 1986 Duke L.J. at 888.

   /35/ Several courts have held that a defendant need not concede
commission of the crime to obtain an entrapment instruction, so long
as the defense does not introduce evidence that is inconsistent with
the government's position.  See note 28, supra.  Because petitioner in
fact denied commission of the crime in this case, there is no need for
the Court to determine the validity of this position.  Nonetheless, we
believe that there is much force to the rule adopted by the Third,
Sixth and Seventh Circuits (see note 27, supra), which prohibits a
defendant from arguing entrapment if he has not conceded commission of
the crime, even if he did not introduce any evidence at trial.  Even
when the defendant does not deny his guilt from the stand or otherwise
offer evidence contesting the government's proof on the elements of
the offense, the defendant's argument to the jury is based on
inconsistent contentions:  it cannot simultaneously be true that the
elements of the offense were not present and that the defendant was
entrapped.  And the entrapment defense is still being invoked by
someone who, according to his argument to the jury, did not commit the
offense at all and therefore could not have been entrapped by a
government agent into commission of the crime.  On the other hand, we
recognize that, as a general matter, a defendant may put the
government to its proof and take advantage of any defenses raised by
the evidence.  And we recognize that, in cases where the defendant has
not offered evidence denying commission of the offense, some courts
have felt that it unreasonably taxes the defendant's right to put the
government to its proof on the issue of guilt for a court to require
the defendant to stipulate to the commission of the offense in order
to enjoy the benefits of the entrapment defense.  See, e.g., United
States v. Henry, 749 F.2d at 211;  United States v. Annese, 631 F.2d
at 1046-1047;  United States v. Demma, 523 F.2d at 984.