Does Spentz allow a jury to give an entrapment instruction where the purported inducement to commit the crime was a pecuniary reward?

MultiRegion, United States of America

The following excerpt is from United States v. Cortes, 757 F.3d 850 (9th Cir. 2014):

Cortes argues Spentz contradicts our prior cases that did allow an entrapment instruction to go to the jury even when the purported inducement to commit the crime was a pecuniary reward. In United States v. Kessee, 992 F.2d 1001 (9th Cir.1993), we held that the district court should have given an entrapment instruction where the defendant faced repeated suggestions by the undercover informant to sell drugs and only caved after he lost both his jobs, and did not know where he would get the money for rent and food for his family. Id. at 100304. Kessee concerns what is minimally necessary to require giving an entrapment instruction to the jury, while Spentz concerns what the jury may not find constitutes entrapment. They are distinguishable. In Spentz, the only evidence of inducement that defendants offer[ed] [was] the size of the potential pay-out from the robbery, i.e. the typical fruits of a robbery, without any additional motivation or evidence of inducement. 653 F.3d at 820. In Kessee, the defendant presented such additional evidence, including repeated government entreaties to sell drugs and the defendant's dire financial straits. 992 F.2d at 100304.

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