I was struck by this report of a recent oral argument in the 2nd Circuit involving a terrorism prosecution. The defendant (and his co-conspirators) were convicted of having plotted to blow up a synagogue in New York and sentenced to 25 years in prison. Part of the plot was hatched with the connivance of government informers and undercover agents.
What struck me most notably was the routineness of the case. Perhaps that’s the wrong word for it, but here is what one of the judges said about the defendants’ entrapment argument:
It would be one thing if the defendant had conceived the crime and then, as obstacles arose, the government removed them. But I think you have to deal with the problem of the full circumstances here.
The government comes up with the idea, picks the targets, provides all the means, removes the obstacles.
That’s quite literally a nearly word-for-word argument in almost any drug undercover case. It’s fact-bound and almost utterly independent of the object of the crime. I will be curious to see whether the entrapment defense makes greater headway in the terrorism prosecution context than it does in others, but I doubt it will.