This is the third of three blog posts that I am writing about two very similar cases of legal entrapment in North Dakota. In Fargo and in Dickinson, Law Enforcement created a fake advertisement for a prostitute or girl wanting to have sex, and then posted these fake advertisements on internet websites. The very reprehensible thing about this, is that these fake advertisements for a prostitute or a girl wanting to have sex, did not say that the girl was under 18 years of age. Law Enforcement attracted men with their fake advertisements, and then later began to make up the fictitious scenario that the prostitute or girl was a minor.
In the first of these two cases that I have written about, 42 year old business owner Dan Durr of Fargo, has already been found not guilty of the Class A felony charge of Patronizing a Minor for Commercial Sexual Activity, because his defense attorney demonstrated in court that Dan Durr did not respond to an advertisement for sex with a minor, never intended to have sex with a minor, and immediately left when he was told that the prostitute was under 18. The Fargo Police made up the scenario that the prostitute was under 18, after Dan Durr arrived at the location. There never was a minor involved whatsoever, the Fargo Police just made up this fake scenario after Dan Durr arrived, in order to increase the charges from a Class B misdemeanor, to a Class A felony punishable by up to 20 years in prison.
It was very wise for Dan Durr’s defense attorney to just stick with the very clear facts of evidence that Dan Durr did not respond to an advertisement for sex with a minor, never intended to have sex with a minor, and left immediately when he was told that the prostitute was under 18. Because other facts were so clear, Dan Durr’s defense attorney did not have to bring up the fact that what the Fargo Police did was legal entrapment.
Several days ago, I began reading many articles and legal opinions on what constitutes legal entrapment. At that time, I was not fully aware of how many times defendants and defense attorneys claim legal entrapment in cases of prostitution stings. It turns out, that in just about every case of prostitution stings conducted by Law Enforcement, the defendants and the defense attorneys always claim legal entrapment, but they don’t always use this as their legal defense.
The reason that defendants and defense attorneys don’t always use legal entrapment as their legal defense in cases of prostitution stings, is because there are two or three specific elements that must be demonstrated very clearly, and it is not always certain that these elements can be demonstrated clearly enough to satisfy a jury.
In the case of Manish of Dickinson, which I wrote about in my previous blog post, his case has two important elements that just about exactly match two of the requirements of legal entrapment, and very likely the third requirement also: 1) The advertisement that he responded to stated that the person who posted the advertisement was 18 years of age; 2) Once being informed that the girl was under 18, Manish repeatedly sent text messages stating that he would not have sex with someone under 18; 3) Law Enforcement’s continued repeated attempts to persuade Manish to meet the girl, likely involved “inducements”, “persuasions”, and other ploys not permitted to be used by Law Enforcement to lead someone to commit a crime and then arrest them for this crime.
In criminal law, entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offence that the person would have otherwise been unlikely or unwilling to commit. However, when entrapment is used as a legal defense in a court of law, the details and fine points become much more specific.
The following excerpts which I have taken from the internet website Lawyers.com article “Entrapment: How Far is Too Far for the Police?”, are consistent with everything that I have read:
“Entrapment is a defense to a criminal charge. Although many people think of all police undercover operations as “entrapment,” in fact law enforcement agents and informants may use false identities and deception in their undercover investigations. But there’s a limit: The entrapment defense is an important check on what police can do to make an arrest by enticing someone to commit a crime.
Typically, defendants raise an entrapment defense when they claim that an undercover agent or informant convinced them to commit a crime that they were not predisposed to commit. If a judge or jury finds entrapment, the defendant cannot be convicted
The Legal Tests for Entrapment
Courts use one of two tests when deciding whether a defendant was entrapped:
- The “objective” test. Some states ask whether the police conduct would have induced any law-abiding person to commit the crime. Here, the question is whether the police conduct in inducing the criminal act would have caused a reasonable person in the same circumstances to commit the crime, regardless of the specific mental state of the defendant. For example, assume an undercover agent asks someone to buy marijuana for that agent in a state where it is illegal. The agent says he wants the marijuana because he needs it to treat the side effects of chemotherapy. Because this type of inducement might cause anyone to commit the crime, the application of objective test would very likely result in a finding of entrapment, even if the defendant had a prior history of drug purchases for recreational reasons.
- The “subjective” test. The majority of states and the federal courts apply a test that examines both the nature of the enticement and the defendant’s state of mind. When asserting this defense, defendants must show that they were induced to commit the crime and may have to weather the prosecutor’s attempts to show that they were predisposed to commit the crime. Let’s look more closely at the subjective test.
Proving Entrapment Under the Subjective Test: The Undercover Officer Was Insistent and the Defendant Was Resistant
The subjective test looks first at the police conduct, then turns its attention to the defendant’s predisposition (or not) to commit the crime charged.
Inducing someone to commit a crime involves more than simply asking that person to commit it. Law enforcement can even lie about certain facts, by using false names, businesses, or associates. To prevail, defendants must usually show at least some persuasion or mild coercion. For example, an undercover agent might ask someone to commit a crime based on friendship, hardship, or a play for sympathy. If a judge or jury concludes that a defendant was pressured to commit a crime, they will likely find that the defendant has been induced. To establish inducement in most jurisdictions, a defendant will be required to show that it is more likely than not that he has been induced by law enforcement to commit a crime.
Defendants who have presented evidence that they were induced may not be home free just yet. While there must be inducement under the subjective test, the question of predisposition is usually the more important factor. Once inducement has been raised by the defense, the prosecutor has the burden to prove, beyond a reasonable doubt, that the defendant was predisposed to commit the crime…”
My belief is, that because Manish responded to an advertisement for sex posted by someone who was 18 years of age, he showed no Predisposition to want to have sex with minor. More importantly, once Manish was informed that the girl was under 18, Manish sent several text messages stating that he would never have sex with someone under 18. I think that this clearly establishes that Manish had no intention or Predisposition to have sex with a minor.
My belief is, that because Manish responded to an advertisement for sex posted by someone who was 18 years of age, and then he was later informed that the girl was under 18 once he began communicating with her, this was the first step of “inducement”. Originally, he had no intention of having anything to do with someone under 18. Once Manish stated several times in text messages that he would never have sex with someone under 18, and the Dickinson Police tried to continue to communicate with him, I think that this was the second “inducement”, where “The undercover officer was insistent and the defendant was resistant.”
If it turns out that the Dickinson Police undercover officer used any other type of ploy, such as a plea for help, aid, assistance, or friendship, to maintain contact with Manish, the case for entrapment will be very clear and complete.
The defense attorney for Manish may know of a better way to proceed legally, perhaps similar to the defense for Dan Durr of Fargo. I wonder if the case of Manish being proved to be very egregious entrapment, would or could lead to a Civil Court Case seeking monetary damages against the City of Dickinson Police Department.
I received an e-mail from Manish’s sister today, explaining that this court case has been resolved. She asked if there was anything that I could do, to not damage his name and reputation any further. I decided to remove his last name from my blog posts, because I believed that Manish was unjustly entrapped to begin with. However, I want these blog posts to remain on the internet, because I do not want this same thing to happen to anyone else.