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If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment?

They do not inform you of their status. Sharing personal information is not very frequent there, but if it does come up and they directly do not mention occupation if asked, will you be able to avoid future charges initiated with this contact because they were not honest?

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  • Just one more note about entrapment defenses: when you pursue an entrapment defense, you admit to committing the crime. Thus, the defendant assumes a burden to prove that he or she was induced to commit a crime. Even if the defendant proves this, if the prosecutor can prove the defendant was predisposed to commit this crime, the defendant is still guilty. – Viktor Sep 16 '15 at 17:39
  • There is no law that says police have to tell the truth (outside of court, of course) or be right about what they say even if they are attempting to be truthful. Basically, everything that comes out of a LEO's mouth (or that they type) is strictly for the purpose of locking you up. – Dean MacGregor Sep 16 '15 at 18:13
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Dale M. has a pretty good, black letter law definition: "Entrapment involves the law enforcement officer inducing the perpetrator to commit a crime that they otherwise would not." However, I think that from a practical standpoint I'd actually go even further: A defense on the basis of entrapment is highly unlikely to succeed unless the law enforcement officer puts the idea to commit the crime in your head and then persuades you to do it. Or, to use a couple of (only slightly facetious) hypotheticals:

Not Entrapment:

Undercover law enforcement officer says to you: "Man, I could really use some cash. You know, we could rob a bank."

You: "Huh, well, I think ABC Bank has pretty lousy security guards. We could hit that one, if we wanted to. Yeah, that's a pretty good idea."

Undercover: "Hey, that sounds like a plan to me. I'm in if you are."

You: "Yeah, I think I am. Let's do it."

Possibly Entrapment:

Undercover: "Man, we could both use some cash. Why don't we rob a bank or something?"

You: "I don't know. That sounds kinda dangerous. Plus, if we get caught we could go to a federal prison for years. I don't think I'd be down with that."

Undercover: "Oh, come on. I know this sweet bank, ABC Bank. Terrible security. We'd be in and out in no time. No danger, nobody goes to prison. And you need cash as bad as I do, don't you?"

You: "Well, yeah, I guess so."

Undercover: "Alright, so don't be chicken. Let's do it."

You: "Well..."

Undercover: "Oh, come on. Easy money!!"

You: "Okay, I guess."

Let's put it this way: When I took criminal procedure in law school the modern cases we read all had the same theme: "No, X doesn't constitute entrapment." To my knowledge, it's just a really, really hard defense to win on in modern American law. (Under federal law and in almost all states, as far as I'm aware.)

Requisite disclaimer: I am not a criminal lawyer who has direct experience with making entrapment law defenses under the law of whatever jurisdiction you might be worried about potentially being charged under. If you want a definitive, reliable answer you need to talk to somebody who is. (You already figured that out, I'm sure, but just for the record...) Still, maybe this helps.

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    Why is it "not entrapment" if it's the undercover agent who suggested robbing a bank first? – o0'. Sep 16 '15 at 16:26
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    As the two examples are written, it is because in the first, the LEO isn't persuading you to do it. 'You" are the one who suggests a target and the rationale for the target. – Dean MacGregor Sep 16 '15 at 18:11
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    From what I understood on this side of the pond just making illegal activity easier than normal thus making it unreasonably attractive would already count as entrapment. E.g. if all bikes would be locked properly and you set up a bike without a lock and with a GPS tracker in it it would be entrapment. If however it's quite common for some bikes to be poorly locked (as it is) there is nothing wrong anymore with using bikes like that. So from the sound of it it is a bit stricter here. – David Mulder Sep 16 '15 at 18:46
  • In the US, the only way a defense of entrapment has a prayer of working is if you can convince the judge or jury that there's basically no way you could have committed anything like the crime you are charged with if not for law enforcement actions. That is, that you had no special propensity to commit a crime of that type. And even then, they rarely work unless law enforcement conduct is truly outrageous. – David Schwartz Sep 17 '15 at 11:38
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A law enforcement officer not telling you they are a law enforcement officer is not entrapment; it's just undercover police work.

Entrapment involves the law enforcement officer inducing the perpetrator to commit a crime that they otherwise would not.

Will you be able to avoid future charges initiated with this contact because they were not honest?

Of course not, there is no obligation on a law enforcement officer to be honest if being dishonest is in accordance with their job requirements at the time.

For example, it is perfectly legal for a male 45-year-old police officer to pretend to be a 14-year-old female on the web in an attempt to catch pedophiles. If the officer induced the perpetrator to request a meeting for the purposes of sex or to request child abuse material then that would be entrapment; if they simply play the role and respond without crossing that line that is OK.

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  • @Dale: Myth #3 is actually even more relevant to this question... – Joe Sep 16 '15 at 21:41
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Sep 16 '15 at 22:00
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Generally not.

In the U.S. police can use lies and deception during investigations and interrogation of suspects. There are few limitations on this. Just search for "police can lie".

"Entrapment" is a defense whose viability is very case-specific. Again, plenty of reading to be had on the subject. In general,

States employ either an objective or a subjective standard to determine whether entrapment occurred.

  • Objective standard: Under an objective standard, when defendants offer entrapment evidence jurors decide whether a police officer's actions would have induced a normally law-abiding person to commit a crime.
  • Subjective standard: Entrapment defenses are less likely to succeed under a subjective standard. The reason is that under a subjective standard, when a defendant offers entrapment evidence, jurors decide whether the defendant's predisposition to commit the crime makes the defendant responsible for his or her actions, regardless of any government agent's inducements.
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    I appreciate the difference between the objective and subjective standards. – Adam Davis Sep 16 '15 at 11:55
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It's worth taking a look at the past stings on the DNMs to get an idea of what is considered kosher. I keep a comprehensive list of DNM-related arrests, and there are a number of stings using undercover agents & flipped accounts, primarily relating to poisons and guns: the 'weaponsguy' case, several UK buyers of poison, Brian Korff, 'dark_mart', and some others.

If you read the available complaints, you see that there is a consistent pattern of the UC letting the future arrestee initiate contact and initiate the deal - the seller, at least after flipping, is never strongly advertising themselves on the DNM forums and may be quite low key about even selling products. (While initially investigating 'dark_mart' to figure out if he was the FBI honeypot, which eventually I figured out he was, I wasn't even certain if he was selling in the relevant time period, he was so low key about it.) Once the buyer has initiated contact and expressed definite intentions about buying the gun or poison, I've noticed the seller is often quoted as reminding the buyer that the items are illegal or could be used to kill, which I assume is deliberate on the UC's part to help establish mens rea. If the buyer doesn't give up, then the UC will take the money and ship fake goods and usually the buyer will then receive a controlled-delivery. (At which point depending on how elaborate the sting is, the buyer might then be coerced into leaving positive feedback on the seller account, which I believe is part of how the weaponsguy sting racked up something like 18 arrests before I figured out who it was and Agora then shut them down.)

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