Predisposition in a Federal Entrapment Defense

What Does Predisposition Mean in a Federal Entrapment Case?

Predisposition is the defendant’s readiness and willingness to commit the charged offense before any government agent made contact. Federal entrapment law applies a subjective test that asks about the defendant’s state of mind, not the propriety of the agent’s conduct. An unwary innocent who is talked into crime may be entrapped; an unwary criminal who seizes an opportunity is not.

The Supreme Court has called predisposition the principal element of the entrapment defense, and the Fifth Circuit follows that focus closely. In United States v. Anderton, the court explained that the focal point of the inquiry is the predisposition of the defendant, and that entrapment comes into play only when the Government’s deception actually implants the criminal design in the mind of an otherwise innocent person. The question is not whether the police created the opportunity, but whether they created the criminal.

Because the test is subjective, the identity of the person who first suggested the crime is only a starting point. What matters is whether the will and intent to break the law originated with the defendant. A person who eagerly agrees, negotiates terms, brings his own resources, or promises repeat business is showing the readiness that defeats the defense. A person who repeatedly declines, hesitates, or has to be worn down over time is showing the reluctance that supports it. The predisposition inquiry is where nearly every federal entrapment case is won or lost, which is why this fact pattern deserves its own close analysis apart from the broader motion.

Who Has to Prove Predisposition, and to What Standard?

Entrapment involves a shifting burden. The defendant must first come forward with some evidence of both inducement and a lack of predisposition. Once he does, the burden shifts to the Government to prove predisposition beyond a reasonable doubt. The defendant never carries the ultimate burden; he only has to raise the issue with enough evidence for a reasonable jury.

The Fifth Circuit set out this structure in United States v. Bradfield. A defendant asserting entrapment must make a prima facie showing of (1) his lack of predisposition and (2) governmental involvement and inducement more substantial than simply providing an opportunity. Once that showing is made, the burden shifts to the Government to prove beyond a reasonable doubt that the defendant was disposed to commit the offense before first being approached by agents. In United States v. Macedo-Flores, the court restated the same rule and emphasized that the ultimate question is the defendant’s disposition before the Government first approached him.

The Government can carry its burden in either of two ways. As the court explained in United States v. Thompson, entrapment can be disproved by proving beyond a reasonable doubt either that the defendant was predisposed or that he was not induced. A jury must find no entrapment when the Government proves either element. The table below traces how the burden moves through a federal case.

Getting the burden allocation right is central to motion practice, because it determines what the defense must produce and what the prosecution must ultimately prove.

Why Predisposition Must Exist Before the Government Made Contact

Predisposition is measured at a fixed point in time: the moment before the Government first approached the defendant. Willingness that appears only after agents begin soliciting is not the same as pre-existing readiness, and courts are careful to keep the two separate. The timing rule is what prevents the Government from manufacturing predisposition and then pointing to it.

The Supreme Court sharpened this rule in the sting context, holding that the prosecution must prove a defendant’s disposition to commit the crime existed independent of, and before, the Government’s contact. The Fifth Circuit applies the same temporal focus. In United States v. Nations, the court explained that the ultimate issue is proof beyond a reasonable doubt of predisposition, judged by whether the criminal intent originated with the defendant or with the agents, focusing on the period before contact.

That does not mean everything after contact is irrelevant. Courts recognize that independently motivated conduct occurring after solicitation begins can be evidence of what the defendant’s disposition already was. If a defendant, once approached, promptly recruits others, supplies his own contraband, or negotiates for larger quantities on his own initiative, a jury may infer that the readiness predated the approach. The line is between behavior that reveals a pre-existing willingness and behavior that the Government essentially built from nothing. Bradfield and Macedo-Flores both frame the question as whether the defendant was willing to commit the offense before first being approached by government agents, and that phrasing is the anchor for the whole analysis.

How Predisposition Is Proved or Rebutted at Trial

Because predisposition turns on the defendant’s state of mind, both sides litigate it through circumstantial factors. Prosecutors point to eagerness and ready agreement; the defense points to reluctance, inexperience, and efforts to back away. No single factor controls, and the jury weighs them together to decide where the criminal intent originated.

The Fifth Circuit has identified recurring markers on both sides. In Macedo-Flores, the court listed the defendant’s eagerness to participate and his ready response to the inducement offer as evidence of predisposition. On the other side, a lack of predisposition can appear from a lack of prior interest or experience in the crime, significant hesitation or unwillingness, or attempts to steer the discussion back to lawful conduct. In Thompson, active and enthusiastic participation was enough to let the jury find predisposition. The table contrasts the two columns of proof.

Prior conduct and reputation can be relevant once the defense is raised, but reluctance is not the ultimate measure. As Nations put it, hesitation is relevant proof of the origin of criminal intent, yet the jury decides based on reasonable doubt about that origin, not about reluctance in isolation.

Opportunity Versus Inducement: Why the Distinction Decides Cases

The most common reason a predisposition-based defense fails is that the Government did nothing more than provide an opportunity. Merely affording a chance or the facilities to commit a crime is not inducement, and it does not entitle a defendant to an entrapment instruction. Inducement requires the creative activity of officials that spurs an unready person to act.

The Fifth Circuit drew this line clearly in Thompson. Government inducement consists of the creative activity of law enforcement in spurring an individual to crime; the Government’s presentation of an opportunity, without more, is not inducement. Providing a defendant an avenue to carry out a plan he already intended does not convert opportunity into entrapment. Anderton makes the same point from the other direction: entrapment comes into play only when the deception implants the criminal design, so a defendant who waited ready and willing cannot complain that agents supplied the means.

This is why predisposition and inducement are described as interrelated. Strong evidence of predisposition tends to show that whatever the agents did was mere opportunity, not inducement. Weak evidence of predisposition makes the same government conduct look more like the persuasion, coaxing, or exploitation of sympathy that can qualify as inducement. A defense that focuses only on what the agents did, without a credible account of why the defendant was not already willing, rarely succeeds under the subjective federal test.

How the Predisposition Question Shapes Federal Motion Practice

Predisposition is generally a jury question, not a matter resolved by pretrial dismissal. That places the fight at trial and at the charge conference, where the defense asks the court to instruct the jury on entrapment under Federal Rule of Criminal Procedure 30. Understanding that posture keeps expectations realistic and directs the work to where it counts.

Because the issue involves basic guilt and the origin of intent, it usually cannot be decided without a trial of the general issue. A defendant who believes the Government has not produced legally sufficient evidence of predisposition may move for a judgment of acquittal under Rule 29, but the standard is demanding and views the evidence in the light most favorable to the verdict. The realistic goals are securing the instruction, holding the Government to its beyond-a-reasonable-doubt burden, and building a factual record of reluctance, inexperience, and government persistence.

This predisposition analysis is one branch of the larger motion to dismiss for outrageous government conduct or entrapment. The companion pages address the mechanics of sting and reverse-sting operations, the separate due-process standard for outrageous conduct decided by the court, and the procedural choice between entrapment as a jury question and dismissal as a matter of law. L&L Law Group handles federal criminal matters in the Northern and Eastern Districts of Texas and can be reached at (972) 370-5060 to discuss how these standards apply to a specific case.

Where This Fits

This guide is one of four situations that arise under the Motion to Dismiss for Outrageous Government Conduct / Entrapment. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997) — A defendant must make a prima facie showing of lack of predisposition and inducement; the Government then proves predisposition before contact beyond a reasonable doubt.
• United States v. Macedo-Flores, 788 F.3d 181 (5th Cir. 2015) — Once entrapment is raised, the Government must prove beyond a reasonable doubt the defendant was disposed to commit the offense before it first approached him.
• United States v. Nations, 764 F.2d 1073 (5th Cir. 1985) — The ultimate issue in entrapment is proof beyond a reasonable doubt of predisposition, judged by whether criminal intent originated with the defendant or agents.
• United States v. Thompson, 130 F.3d 676 (5th Cir. 1997) — The Government disproves entrapment by proving beyond a reasonable doubt either the defendant's predisposition or the absence of inducement; mere opportunity is not inducement.
• United States v. Anderton, 679 F.2d 1199 (5th Cir. 1982) — Entrapment comes into play only when the Government's deception implants the criminal design; the inquiry focuses on the defendant's predisposition.

General summaries of published opinions for information only — not predictions about any specific case.