Witch Doctors and Battleship Stalkers: The Edges of Exculpation in Entrapment Cases

I. INTRODUCTION The bumbling criminal has long been humorous to the lawabiding. Take, for example, a man recently intent on robbing a bank. The man entered a Bank of America bank, grabbed a deposit slip, and wrote on it "This iz a stikkup. Put all your muny in this bag."^sup 1^ While waiting in line for a teller, he became worried that someone had seen him write the note and would inform the police.^sup 2^ Thus, he exited the bank, walked across the street to the Wells Fargo bank, and gave the note to a teller.^sup 3^ The teller, probably sensing his lack of dangerousness from the note, informed him that she could not comply because the note was on a Bank of America deposit slip, not a Wells Fargo Slip.^sup 4^ He then returned to the other bank and began to wait in line.^sup 5^ The Wells Fargo teller called the police and the man was arrested while waiting in line at the Bank of America.^sup 6^ Many may wonder whether this man had enough wits to be a successful criminal. In general, however, this concern is irrelevant to the law. As long as he had an intent to commit the crime, and acted on that intent, he is culpable, and therefore punishable. There are rare cases, however, where unsuccessful defendants are exonerated. Consider for example a witch doctor who intends to commit murder with a voodoo doll; or an individual who tries to sink a battleship with a BB gun. In such cases, few would argue that prosecution for attempted murder or attempted battleship sinking is appropriate. Although these hypotheticals push the limits of possibility, they highlight the question of whether criminal inability may ever be grounds for exculpation. This question was raised in United States v. Hollingsworth, a recent entrapment case where two defendants willingly acquiesced to a government agent's directions to launder money.^sup 7^ The Seventh Circuit reversed the defendants' conviction because the court found them to be "foolish" men who had "no prayer of becoming money launderers without the government's aid."^sup 8^ The court reasoned that, because the defendants had no "underworld contacts, financial acumen or ... access to foreign banks," which were needed to commit the crime, they were "objectively harmless."^sup 9^ Thus, the Seventh Circuit held that, in entrapment cases, one's inability to independently commit the crime in question is, in some cases, a legitimate defense.^sup 10^ The Seventh Circuit's analysis has come to be known as the "positional predisposition" inquiry because it attempts to discern whether the defendant was in the position to commit the crime before being contacted by the government.^sup 11^ While some commentators have supported the Hollingsworth approach,^sup 12^ the Fifth Circuit recently became the third federal appeals court to reject the Hollingsworth approach.^sup 13^ This Note seeks to resolve the debate over the positional predisposition inquiry. Entrapment cases typically involve undercover police tactics that are necessary to detect so-called "consensual crimes."^sup 14^ These crimes, such as prostitution or drug use, are difficult to detect without covert tactics because neither party to the crime is likely to report it.^sup 15^ Increased criminalization of consensual behavior, which was common in the early twentieth century, increases the prevalence and sophistication of police undercover tactics, creating a risk that previously innocent individuals will become trapped into a crime.^sup 16^ In response to this risk, the judiciary created the defense of entrapment. ^sup 17^ As promulgated by the Supreme Court in 1932, the entrapment defense involves a simple two-part evaluation.^sup 18^ First, the defendant asserting the defense must show that the government induced her to commit the crime.^sup 19^ A successful showing of inducement shifts the burden to the prosecution to show that, despite the government inducement, the defendant was nonetheless predisposed to commit the crime. …