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Entrapment by estoppel

What is entrapment by estoppel?

[It's an] affirmative defense known as entrapment by estoppel. Such a defense is available when a government official has actively misled a defendant into a reasonable belief that his or her charged conduct is legal. United States v. Neville, 82 F.3d 750, 761 (7th Cir. 1996).

[T]he defense is available to those defendants proving that a government official, acting with actual or apparent authority, affirmatively assured or actively misled the defendant into a reasonable belief that certain conduct was legal. Neville, 82 F.3d at 761. The defendant must actually rely upon the official’s assurances in choosing his or her course of conduct, and such reliance must be reasonable in light of “the identity of the agent, the point of law represented, and the substance of the misrepresentation.” Id. In short, the defendant must have a reasonable belief that he is acting “pursuant to official authorization” to commit the crime or crimes with which he has been charged. Id. Given this rigorous standard, we have characterized entrapment by estoppel as a defense that is “rarely available.” Id.

As a prerequisite for presenting an entrapment defense to the jury, the defendant must produce sufficient evidence from which a rational jury could infer that he was entrapped into committing the crime charged. United States v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993). Where the evidence proffered is insufficient as a matter of law to support the defense, a district court does not err in making a pretrial ruling precluding the presentation of the defense at trial. Id. A district court’s ruling in this regard is reviewed de novo. Id. at 726.

United States v. Fish, No. 04-1197 (7th Cir., Nov. 3, 2004), *2-4.  In Fish, a unanimous three-judge panel held that "Fish' [being] born into a culture of pervasive violence and disrespect for the rule of law that was created and fostered by flawed governmental policy," did not allow him to assert entrapment by estoppel.  Fish, who lived on tribal land, claimed that since the federal government disregarded the tribe, it de facto said that the tribe did not fall under federal law.