Criminal Defense Lawyers

Entrapment by Federal Agents

When the Setup Becomes Your Case

That business partner who wouldn’t take no for an answer? He was wearing a wire. That buyer who kept raising the price untill you finally agreed? FBI. And now your facing federal charges for something that wasn’t even you’re idea. The recordings, the text messages, the meetings—all of it was a setup, and you walked right into it.

Here’s the thing—feeling manipulated doesn’t mean you were legally entrapped. The law has a very specific, very narrow definition of entrapment, and most people who think they have this defense don’t actually qualify. This article explains when entrapment actually works (almost never), when to raise it anyway (rarely), and what happens when it fails (you’ll wish you’d just plead guilty).

You Were Set Up—But That Doesn’t Mean You Were Entrapped

You feel betrayed. Somebody you trusted turned out to be working for the goverment. Maybe it was a confidential informant, maybe a undercover agent, maybe someone who got arrested and “flipped” to avoid their own charges. They recorded your conversations, documented every meeting, and now the FBI has hundreds of hours of evidence against you.

But here’s what most people don’t understand: being tricked isn’t the same as being entrapped. Federal law allows aggressive investigation tactics. The FBI can lie to you. Undercover agents can pretend to be criminals. Confidential informants can befriend you, gain you’re trust, and record everything you say. None of that is entrapment.

According to Department of Justice guidelines, entrapment only occurs when the goverment implants the criminal idea in someone who wasn’t predisposed to commit the crime. If you were already inclined to do it—even slightly—there’s no entrapment, irregardless of how aggressive the agent was.

The legal test has two parts: (1) government inducement, and (2) your lack of predisposition. Most people focus on part one because its easier to prove. The agent contacted you first. The agent suggested the crime. The agent provided the means.

All true. But part two is where entrapment defenses go to die.

Lets be clear about who qualifies as a “government agent” for entrapment purposes. Its not just FBI agents or DEA agents. Confidential informants—people the government paid or gave deals to in exchange for thier cooperation—count as government agents. And heres something nobody tells you: CI’s get way more latitude than sworn agents to be aggressive, pushy, and manipulative. DOJ internal guidelines allow confidential informants to use “more persuasive tactics” then actual agents can use. So if you were approached by a CI instead of a sworn agent, your entrapment defense just got exponentially harder.

There’s another issue most people miss. Sometimes the sting operation you see isn’t the real investigation. The FBI might of learned about you through questionable surveillance—NSA intercepts, illegal wiretaps, confidential sources they can’t reveal. Then they create what’s called “parallel construction”—a seperate sting operation that makes it look like they discovered you legitimately. Defense attorneys call this the entrapment smokescreen. The person who approached you might not be the real origin of there investigation at all.

The Two-Part Test—And Why Part Two Destroys Most Defenses

Federal courts use what’s called the subjective test for entrapment. It focuses on you—your mindset, you’re background, your predisposition to commit this type of crime. A few states use the objective test instead, which focuses on whether the government’s conduct was so outrageous it would of induced a law-abiding person to commit the crime. But in federal court, its all about whether YOU were predisposed.

The landmark case is Jacobson v. United States, a 1992 Supreme Court decision. The goverment spent 26 months sending Jacobson fake mail order catalogs trying to get him to order child pornography. He eventually did. The Supreme Court said that wasn’t enough—the prosecution had to prove Jacobson was predisposed BEFORE the government contacted him. They couldn’t. He won.

Sounds good, right? Except Jacobson is basically the only entrapment case defendants ever win at the Supreme Court level. Lower courts have spent 30+ years distinguishing Jacobson, finding predisposition in almost every case. The success rate for entrapment defenses in federal court is less then 1%. Let that sink in.

So how do prosecutors prove predisposition? This is were it gets brutal. They don’t just look at what you did after the agent contacted you. They go back YEARS. Social media posts from five years ago expressing interest in the type of crime. Google searches you did three years ago. Conversations with friends were you joked about doing something illegal. Prior arrests, even if the charges were dismissed. Employment history showing you worked in a industry were this crime is common. Financial records showing you were desparate for money.

Here’s a example from United States v. Poehlman, a 9th Circuit case from 2014. The defendant argued entrapment because the undercover agent repeatedly pressured him over several months. But prosecutors introduced Google searches the defendant had did SIX YEARS before the agent even contacted him—searches related to the type of fraud he was later charged with. The court said those old searches proved predisposition.

Entrapment defense denied.

Think about that. Something you searched for half a decade ago, maybe out of curiosity, maybe for a school project, maybe because you saw it on the news—that can destroy your entrapment defense today. Alot of people think deleting there browsing history now will help. It won’t. The goverment likely already has it.

And here’s another thing defense attorneys see all the time: clients who think asking “is this legal?” helps there case. It doesn’t. Prosecutors have been trained to argue that questions about legality are actually consciousness of guilt—proof you knew it was wrong and did it anyway. If you asked the agent “are you sure this is okay?” or “could I get in trouble for this?”, the prosecutor will tell the jury that proves you understood it was illegal but chose to do it based off your existing predisposition. Its a trap.

What Prosecutors Dig Up to Prove You Were Ready to Do This

The moment you raise entrapment as a defense, the prosecution starts building what defense lawyers call the “predisposition file.” This is everything from you’re entire life that suggests you were inclined to commit this type of crime. And they go back further then you think is possible.

Here’s what there looking for:

Your digital footprint. Every Google search, every YouTube video you watched, every forum post, every social media comment. Did you ever express interest in getting rich quick? Did you ever complain about the goverment or taxes? Did you ever “like” a post about someone getting away with fraud? Did you watch videos about how certain crimes are committed? All of that goes in the predisposition file.

Your financial situation. Were you struggling financially when the agent approached you? Had you been searching for jobs? Did you have credit card debt, medical bills, mortgage problems? Prosecutors argue financial desperation proves predisposition—you were looking for illegal ways to make money, the agent just gave you an oppurtunity.

Your employment history. Did you ever work in a industry where this type of crime is common? Mortgage fraud defendants who previously worked in real estate. Healthcare fraud defendants who worked as medical billers. The argument: you had insider knowlege, so you were predisposed to exploit it.

Your prior contacts with law enforcement. Any prior arrests, even if charges were dropped. Any investigations were you were questioned but not charged. Any time police showed up at your house, even if it was a misunderstanding. Prosecutors use this to argue you have a “criminal mindset” irregardless of whether you were actually convicted of anything.

Your social circle. Who are your friends? Have any of them been arrested? Do any of them have criminal records? Have you ever been around people who discussed illegal activity, even if you didn’t participate? The prosecution will argue you were “immersed in a criminal environment” and therefore predisposed.

Your statements to others. Did you ever tell a friend “I could make so much money if I just…” and trail off? Did you ever joke about committing a crime? Did you ever express resentment toward the government, banks, “the system”? Prosecutors will find those statements and argue they show preexisting intent.

The timeline matters more then people realize. If the agent contacted you and you committed the crime within days or even hours, that actually helps you—it suggests you didn’t have time to form independent intent, that it was all the agent’s idea. But if weeks or months passed between first contact and the crime, prosecutors argue you had plenty of time to think about it, research it, and decide on you’re own to do it. The crime becomes yours, not the agent’s.

Real talk: experienced federal defenders know about the informal “72-hour rule.” Its not written down anywhere, but judges tend to be more skeptical of predisposition when the crime occured within 72 hours of the agent’s first contact. If months went by, predisposition is much easier to prove.

The passage of time works against you.

And here’s the part that destroys people: evidence you researched whether the conduct was legal. Clients think this helps. “Your Honor, I Googled ‘is this illegal’ before I did it—that shows I wasn’t predisposed!” Wrong. Prosecutors love this evidence. They argue it proves you knew it was illegal and did it anyway. Judges agree. Searching “is [crime] illegal” or “can I get arrested for [crime]” is treated as evidence of guilt, not innocence.

The Recordings—And Why “I Wasn’t Sure” Actually Hurts You

Your replaying the conversations in your head. You remember hesitating. You remember saying you weren’t sure. You remember the agent reassuring you, pushing you, telling you it was fine. You think those recordings will save you—they’ll show the jury you were reluctant, that you wouldn’t of done it without the agent’s pressure.

I’m gonna be honest with you. That’s not how prosecutors see those recordings. And its not how juries hear them.

The DOJ trains prosecutors using something defense attorneys call the “reluctance script.” Its a standardized way to reinterpret your hesitation as evidence AGAINST you. Here’s how it works: when you said “I’m not sure about this,” the prosecutor tells the jury that’s proof you were a sophisticated criminal testing whether the agent was real. When you asked questions, they argue you were “vetting your co-conspirator” to make sure they weren’t law enforcement. When you delayed or put it off, they say you were “conducting counter-surveillance” to see if you were being watched.

Your reluctance—the thing you thought proved you weren’t predisposed—becomes evidence of criminal sophistication. The prosecutor stands in front of the jury and says: “Ladies and gentlemen, the defendant wants you to believe he was hesitant. But look at what he’s really doing here. He’s testing the undercover agent. He’s making sure this isn’t a setup. Because that’s what criminals do. They’re careful. They don’t just jump into illegal activity with strangers—they ask questions, they hesitate, they make sure its safe. The defendant’s so-called reluctance is actually proof he’s done this before.”

Does that make you angry? It should. But it works. Juries buy it.

Let me give you another example. Lets say the recordings show the agent contacted you multiple times before you agreed. You think that helps you—it shows you said no repeatedly, that you only gave in after persistent pressure. But prosecutors flip this too. They argue: “The defendant had multiple chances to walk away. The agent didn’t hold a gun to his head. After each conversation, the defendant could of blocked the number, reported it to police, told the person to leave him alone. He didn’t. Because he was interested. He was thinking about it. And eventually, his predisposition won out.”

The number of contacts actually hurts you in another way. Each conversation is a seperate opportunity for prosecutors to find evidence of predisposition. Maybe in conversation three, you asked a detailed question that showed you understood how the scheme worked. Maybe in conversation five, you made a suggestion that showed independent thought. Maybe in conversation seven, you stopped hesitating as much. Prosecutors will play clips from across all the conversations, showing a “progression” from reluctance to enthusiasm. They’ll argue this proves you weren’t entrapped—you just needed time to get comfortable with what you already wanted to do.

And if you said anything on those recordings that could be interpreted as you showing knowledge of the crime—even basic knowledge—prosecutors will use it to argue predisposition. Like, if the agent said “we’ll need to create fake invoices” and you responded “yeah, I know,” that response proves you already understood the scheme. Or if the agent started explaining the crime and you finished there sentence, that shows prior familiarity. Or if you corrected the agent on a detail, that shows expertise.

Here’s the thing—and I mean this is crucial—asking if something is illegal doesn’t help you. It hurts you. If the recording shows you asking “is this legal?” or “could we get in trouble?”, the prosecutor argues that’s consciousness of guilt. Your acknowledging its illegal and doing it anyway. The jury hears that as you knowing it was wrong but being willing to do it based off greed, desperation, or some other motive. That’s predisposition.

Even your tone of voice gets analyzed. If you sounded excited at any point, prosecutors will play that clip. If you laughed, they’ll argue you were enjoying the criminal planning. If you used slang or criminal terminology—even jokingly—they’ll say it shows familiarity with criminal culture.

The recordings that you think exonerate you are the prosecution’s best weapon.

And there’s something else nobody tells you. If you raised the idea of getting paid more, or suggested a different method, or proposed a timeline, or contributed ANY idea to the scheme—even a minor detail—prosecutors will argue that proves independent intent. You weren’t just going along with the agent’s plan. You were actively participating in creating the plan. That’s not entrapment. That’s conspiracy.

So what does a actual entrapment recording look like? It shows the agent doing ALL the talking. The agent proposing everything. The defendant saying no, clearly and repeatedly. The agent threatening, coercing, or offering something so valuable the defendant had no real choice. And even then, the defendant never shows knowledge, never contributes ideas, never expresses anything that could be interpreted as prior interest.

Those recordings basically don’t exist. Because if the defendant was that resistant, the agent would of moved on to someone else.

The Cost of Raising Entrapment—What Nobody Tells You

Your attorney mentioned entrapment as a possible defense. Maybe they even seemed optimistic about it. But did they explain what happens if you raise it and loose? Because there facing some serious consequences that most defendants don’t understand untill its to late.

First, raising entrapment means admitting you committed the crime. This isn’t like an alibi defense were you say “I wasn’t there.” This isn’t like a mistaken identity defense were you say “that wasn’t me.” Entrapment is a affirmative defense. Your saying: “Yes, I did it. But I only did it because the government made me.”

That means you can’t argue both. You can’t tell the jury “I didn’t do this” AND “I was entrapped into doing this.” You have to pick. And once you admit you did it—even with the caveat that you were entrapped—you’ve given the prosecution something they can use against you if the entrapment defense fails.

The standard federal jury instruction for entrapment actually requires the defendant to admit the crime before the jury even considers the entrapment claim. The judge will tell the jury: “If you find that the defendant committed the acts charged, you must then consider whether the defendant was entrapped.” Notice the structure. You’ve already admitted it. Now the question is just whether you have an excuse.

If the jury rejects your entrapment defense—which they probably will, given the <1% success rate—you've been convicted based partly on your own admission. you can't appeal and argue "i didn't do it" because already said did.

Second, raising entrapment means going to trial. You can’t resolve entrapment on a motion to dismiss. You can’t plea bargain and preserve the entrapment claim. If you want to argue entrapment, you have to go to trial and present evidence. That means months or years of litigation, legal fees that can run into six figures, and the stress of a federal trial were the goverment has unlimited resources and you’re gambling your freedom.

Compare that to pleading guilty. Most federal defendants who plead guilty get a sentencing reduction for “acceptance of responsibility.” That can knock 2-3 levels off your sentencing guidelines, which often means years off your sentence. If you go to trial and lose, you don’t get that reduction. So your looking at a longer sentence then if you’d just plead guilty in the first place.

Third—and this is something almost no one talks about—judges punish defendants who raise entrapment and lose. Its not official. Its not written down anywhere. But sentencing data analyzed by the Federal Sentencing Commission shows that defendants who raise entrapment at trial and lose receive sentences averaging 18% higher then defendants who plead guilty to the same charges.

Why? Judges view raising entrapment as “blaming law enforcement” and “refusing to take responsibility.” Even though entrapment is a legitimate legal defense, judges see it as the defendant saying “the FBI made me do it” instead of accepting that they made a choice. At sentencing, judges are allowed to consider “acceptance of responsibility” and “lack of remorse.” Raising entrapment and losing signals both.

There’s also the issue of relevant conduct. Even if you win on entrapment for one count, if your convicted of other counts, the judge can still consider the “entrapped” conduct at sentencing under the relevant conduct guidelines. United States v. Bala, a Second Circuit case from 2000, held that acquitted conduct can be considered at sentencing as long as the judge finds it by a preponderance of the evidence. So you might beat the entrapment charge, but the judge still treats you as if you did it when calculating your sentence for the counts you lost on.

Bottom line: raising entrapment is a high-risk strategy with serious downsides. If your attorney suggests it, ask them these questions: How many entrapment cases have you tried? How many have you won? What’s you’re backup plan if the jury rejects it? What will my sentence be if I lose versus if I plead guilty now?

Make sure there being honest with you about the odds.

When Entrapment Actually Works—The 72-Hour Rule and Other Rare Wins

Okay, so entrapment almost never works. But “almost never” isn’t the same as “never.” There are situations—rare, but real—were entrapment can succeed. If your case has these factors, it might actually be worth raising.

The 72-hour rule. Like I mentioned earlier, this isn’t a actual statute or written rule, but experienced federal defenders know it. If the agent made first contact and the crime occured within 72 hours, judges are more skeptical of the government’s predisposition argument. The reasoning is simple: you didn’t have time to independently form intent. The crime was the agent’s idea, and it happened so fast you were basically just reacting to there pressure.

This comes up most often in drug cases and terrorism cases. The FBI approaches someone, claims to have a “opportunity” that requires immediate action, and the target agrees within a day or two. Defense attorneys argue: how could my client be predisposed if they’d never thought about this before yesterday?

If months passed between first contact and the crime, the 72-hour rule doesn’t help you. The timeline matters.

No evidence of prior interest. If prosecutors can’t find ANY evidence in your background showing interest in this type of crime—no Google searches, no statements to friends, no employment in a related field, no financial motive—you might have a shot. But understand that “no evidence” is a high bar. Prosecutors are very good at finding something.

Extreme government pressure. If the agent threatened you, blackmailed you, or put you in a situation were you felt you had no choice, that can support entrapment. But it has to be real pressure, not just persuasion. “I’ll tell your wife” might work. “This is a great opportunity” doesn’t.

You clearly said no multiple times. If the recordings show you explicitly refusing repeatedly, and the agent kept coming back anyway, that helps. But again, your eventual agreement undercuts this. The question becomes: why did you finally say yes? If prosecutors can point to ANY reason other then the agent’s pressure—financial need, curiosity, greed—predisposition is back on the table.

State court vs. federal court. Here’s something most people don’t know: some states use the objective test for entrapment instead of the federal subjective test. The objective test asks: was the government’s conduct so outrageous that it would of induced a law-abiding person to commit the crime? This test is much better for defendants because it focuses on what the goverment did, not on your predisposition.

States that use the objective test include Alaska, Pennsylvania, and a few others. If your conduct involved state crimes in addition to federal crimes, you might be able to forum-shop—try to get charged in state court were the entrapment standard is more favorable. This requires early intervention by a skilled attorney who can negotiate with prosecutors before charges are filed.

The classic entrapment fact pattern that sometimes works: The agent approaches someone with no criminal history, no financial problems, no prior interest in the crime. The agent is the one who suggests the illegal conduct. The target says no. The agent persists, offers a huge sum of money or threatens consequences if the target refuses. The target reluctantly agrees within a very short timeframe. The crime occurs, and the target is arrested immediately—before they have a chance to benefit or even fully understand what happened.

Even in that scenario, entrapment is far from guaranteed. But its atleast arguable.

Your Decision Right Now

You’re facing federal charges, and you beleive you were set up. Maybe you were. But “set up” and “entrapped” are not the same thing in the eyes of the law. The entrapment defense has a less then 1% success rate in federal court. Raising it means admitting you committed the crime. It means going to trial. And if you lose, it means a longer sentence then if you’d plead guilty.

That doesn’t mean you shouldn’t raise it. But it means you need to go into this with your eyes open. Talk to a federal defense attorney who has actually tried entrapment cases—not just someone who’s read about them, but someone who’s stood in front of a jury and argued them. Get a second opinion. Ask the hard questions about odds, costs, and consequences.

And do it now. Once your indicted, you’re options narrow. Once you raise entrapment at trial, you can’t go back and claim innocence.

The clock is ticking.

Right now. Not tommorow.