Corrupt Cop Was Not Victim of Criminal Entrapment

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United States v. Baker, (3rd Cir. 2019)

Tyson Baker was a police officer suspected of stealing from drug dealers, so the FBI enlisted another officer to “keep [his] ear to the ground” regarding Baker’s activities. Baker suggested to the informant officer they rip off drug dealers “to help financially with our individual bills and stresses of life.” The informant officer reported the conversation to the FBI.

A short time later, the informant officer executed a search warrant at a drug dealer’s house. Baker volunteered to come to the scene and assist with booking evidence. There were 13 stacks of $1,000 in cash bills. Baker took $3,000 and later gave $1,000 to the informant officer.

Baker was arrested and confessed to the thefts, but later claimed he was entrapped. He asked the trial court to instruct the jury about the entrapment defense; the court refused.

A few weeks later, FBI agents arranged an undercover operation in which Baker and the informant officer would stop an FBI agent posing as a drug trafficker with $15,000 in cash hidden in the vehicle. The FBI had hidden cameras inside the vehicle, allowing real-time monitoring. When Baker discovered the bag of cash, he took $3,000.

Baker was arrested and confessed to the thefts, but later claimed he was entrapped. He asked the trial court to instruct the jury about the entrapment defense; the court refused. The jury convicted Baker and he was sentenced to three-and-one-half years in prison. Baker appealed, arguing the jury should have been allowed to consider whether the FBI entrapped him.

Courts define entrapment as a government agent inducing a person to commit a crime when the person lacks the predisposition to commit the crime. The defendant bears the burden of showing some evidence of inducement. Inducement is not “mere solicitation” or “merely opening an opportunity for a crime.” An officer may be said to have induced a person to commit a crime when the officer uses “persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship.”

Baker failed to show the FBI agents or the informant officer had done anything to induce his thefts. In fact, Baker testified his fellow officer did not harass or persuade him to steal. The FBI may have provided the opportunity for Baker to steal during the sting operation, but that didn’t constitute “inducement” to steal. The agents concocted the sting operation after Baker suggested “ripping off drug dealers.” Baker acknowledged he was motivated by his own “ugly thoughts” and being “tired and weak.” Thus, there was no entrapment and his conviction stands.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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