UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 1:14-CR-14-TLS

)

FLOYD D. THOMAS )

OPINION AND ORDER

The Defendant, Floyd D. Thomas, along with five co-defendants, was charged by

Indictment with conspiracy to possess with intent to distribute cocaine, and possession of a

firearm in furtherance of a drug trafficking crime. The Defendant, now proceeding pro se, has

filed a Motion for Dismissal on Grounds of Entrapment [ECF No. 363]. In the Motion, the

Defendant details his interactions with a confidential informant and undercover agents, and

argues that these interactions prove entrapment. The Government, in Response to the

Defendant’s Motion to Dismiss Regarding Entrapment [ECF No. 368], takes issue with the

Defendant’s version of the facts, stating that it has a tremendous amount of evidence that is

appropriate for a jury to consider. In the Defendant’s Reply [ECF No. 372], he continues to

attack the credibility of law enforcement and to argue that entrapment is a recognized defense.

“Entrapment is a defense to criminal liability when the defendant was not predisposed to

commit the charged crime before the intervention of the government’s agents and the

government’s conduct induced him to commit it.” United States v. Mayfield, 771 F.3d 417, 420

(7th Cir. 2014) (en banc). Procedurally, the defense of entrapment is a question for a jury. Id. at

439 (explaining that “the subjective basis of the defense makes entrapment a fact question for the

jury to decide ‘as part of its function of determining the guilt or innocence of the accused’”

(quoting United States v. Sherman, 356 U.S. 369, 377 (1958)); see also Mathews v. United
States, 485 U.S. 58, 63 (1988); United States v. Barta, 776 F.3d 931, 936 (7th Cir. 2015). The

only time entrapment is not an issue for a jury is if the defendant fails to meet the threshold

burden to “produce sufficient evidence upon which a rational jury could have inferred that he

was entrapped into committing the crime charged.” United States v. Santiago-Godinez, 12 F.3d

722, 727 (7th Cir. 1993) (citing cases). However, the Seventh Circuit has cautioned courts about

the risk of being “tempted to balance the defendant’s evidence against the government’s” when

considering a government motion in limine to preclude the entrapment defense, because to do so

would be “invading the province of the jury” and “rais[e] the bar for presenting entrapment

evidence at trial.” Mayfield, 771 F.3d at 440 (emphasis added); see also United States v.

Johnson, 32 F.3d 304, 307 (7th Cir. 1994) (explaining that the availability of an entrapment

defense “is typically not amenable to pretrial resolution because whether or not entrapment

occurred is a factual issue” that turns on intent and credibility).

The Court makes no ruling, at this time, whether the Defendant is entitled to a jury

instruction on entrapment. However, the Court can definitively and conclusively find that there

is no basis in the law to take the question of entrapment, if the evidence submitted at trial

supports it, out of the province of the jury.1

 The Defendant’s Motion does not present a basis to

dismiss the Indictment against him.

1 The Defendant repeatedly cites to Justice Brandeis’s dissent in Casey v. United States, 276 U.S.

413 (1928), presumably because Justice Brandeis advanced the theory that courts should not preside over

the prosecutions of entrapped defendants because it would be “ratification by the government of the

officers’ unauthorized and unjustifiable conduct.” 276 U.S. at 423–24 (Brandeis, J., dissenting). As noted

by the Seventh Circuit in Mayfield, when the Supreme Court eventually adopted the entrapment defense

(it had not done so in Casey), it expressly rejected the “judicial integrity” justification promoted by

Justice Brandeis. 771 F.3d at 426 (citing Sorrells v. United States, 287 U.S. 435, 449–50 (1932)). By

adopting the defense on statutory interpretation grounds instead, the Court dictated that it was a question

for a jury to decide. Id. at 427. None of the Defendant’s protestations regarding the evidence alters this.

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CONCLUSION

For the reasons stated above, the Court DENIES the Defendant’s Motion for Dismissal

on Grounds of Entrapment [ECF No. 363].

SO ORDERED on April 18, 2018.

 s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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