STATE OF FLORIDA, APPELLANT,
v.
EDDIE ALEJANDRO GARCIA AND MEMUEL FENTES, A/K/A HERMUS MANUEL GARCIA, APPELLEES
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Florida appeals the trial court's dismissal of cocaine trafficking charges against Garcia and Fentes based on claims of vicarious entrapment and due process violations stemming from alleged misconduct by a police informant toward a middleman (Figueredo). The appellate court reverses, holding that defendants who had no direct contact with the informant cannot claim vicarious entrapment merely because a middleman was improperly induced.
Appellees cannot claim vicarious entrapment because they had no direct contact with the informant and the inducement came through a private citizen (Figueredo) rather than a government agent. The trial court erred in concluding that a violation of Figueredo's due process rights tainted the entire activity and thereby violated the appellees' due process rights.
[1] The defense of entrapment is not available when the inducement to commit a crime comes from a private citizen who is not a government agent.
[2] When a middleman induces another person to participate in a crime, the defense of entrapment does not apply to that person.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although the middleman may have been entrapped because of the informant's actions, appellees had no contact with the informant. When a middleman induces another person to participate in the crime, entrapment does not apply.”
Establishes the core principle that entrapment requires direct contact with the improperly acting government agent, not merely indirect involvement through a middleman.
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Join FLexlaw to unlock all legal intelligenceOn August 7, 1986, a police informant approached Figueredo at his workplace and allegedly threatened him with a firearm while discussing narcotics sal…
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CAMPBELL, Chief Judge.
Appellant, State of Florida, appeals a trial court order granting appellees’ motions to dismiss. Appellees, Eddie Alejandro Garcia and Memuel Fentes, also known as Hermus Manuel Garcia, were charged with trafficking in cocaine, conspiracy to traffic in cocaine, possession of cocaine and delivery of cocaine. Appellees’ motions to dismiss alleged a violation of dne process of law because of the outrageous conduct of an informant. The motions were granted on the basis of vicarious entrapment and subjective due process. We reverse.
No testimony was given at the hearing on the motion to dismiss. The factual events were not precisely determined. It appears that on August 7, 1986, a police informant went to another codefendant’s (Figueredo’s) place of employment to discuss the sale of guns and narcotics with yet another individual who declined participation. Counsel for Figueredo alleged that the informant then discussed the sale of narcotics with Figueredo and assaulted and threatened Figueredo with a firearm to persuade him to provide the drugs. Appellant argues that the informant was not pointing the gun at Figueredo, but was merely showing it to him. In any event, the informant left Figueredo’s place of employment and went to the police office. The informant and Figueredo discussed the arrangements for the deal during several subsequent telephone conversations.
Figueredo arrived at the prearranged location with several others, including both appellees. While appellee Fentes asserts that he knew that Figueredo had been threatened with a gun, that knowledge came from Figueredo and not from any contact between the informant and either appellee.
Appellant argues on appeal that it was error to grant the motions to dismiss because appellees were neither entrapped nor were their due process rights violated by the informant’s alleged actions with Fi-gueredo. We agree.
Appellees argue that since the middleman, Figueredo, was the victim of police misconduct and thus objectively entrapped, they also were the subjects of vicarious objective entrapment. See Cruz v. State, 465 So. 2d 516 (Fla.1985), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). The charges against Figueredo were dismissed because of the informant’s actions with the gun. That dismissal was per curiam affirmed by this court. State v. Figueredo, 522 So. 2d 396 (Fla. 2d DCA 1988). However, this does not entitle appellees to use the same defense. Several cases have held that the defense of entrapment is not available if the inducement to act comes from a private citizen who is not a government agent. Acosta v. State, 477 So. 2d 9 (Fla.3d DCA 1985); State v. Perez, 438 So. 2d 436 (Fla.3d DCA 1983). Those cases are analogous to the case here. Although the middleman may have been entrapped because of the informant’s actions, appellees had no contact with the informant. When a middleman induces another person to participate in the crime, entrapment does not apply. Perez. Appellees are simply too far removed from the alleged improperly-acting informant. Acosta.
In United States v. Valencia, 645 F. 2d 1158 (2d Cir.1980), opinion amended by U.S. v. Valencia, 669 F. 2d 37 (2d Cir.N.Y.1980), the court held that a defendant who was informed of the inducement should be afforded the defense of vicarious entrapment. We reject reliance on that case which apparently stands alone in its recognition of the vicarious entrapment defense and instead agree with the court’s reasoning in Perez. See United States v. Bradley, 820 F. 2d 3 (1st Cir.1987), declining to follow United States v. Valencia, 645 F. 2d 1158 (2d Cir.1980).
Appellees further argue that if subjective entrapment does not apply, objective entrapment does because their due process rights have been violated. The determination of that defense is an objective question of law and we conclude that the trial court erred in deciding that the violation of Fi-gueredo’s due process rights tainted the entire activity and thereby violated appel-lees’ due process rights. See State v. Glosson, 462 So. 2d 1082 (Fla.1985).
We reverse and remand for trial.
SCHEB and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Hunter, 586 So. 2d 319 (Fla. 1991)…iamond’s acts amounted to entrapment of Conklin, the middleman, he had minimal telephone contacts with Hunter. When a middleman, not a state agent, induces another person to engage in a crime, entrapment is not an available defense. State v. Garcia, 528 So. 2d 76 (Fla. 2d DCA), review denied, 536 So. 2d 244 (Fla.1988); Acosta v. State, 477 So. 2d 9 (Fla. 3d DCA 1985); State v. Perez, 438 So. 2d 436 (Fla. 3d DCA 1983). Conklin, not Diamond, brought Hunter into the scheme, and Hunter’s involvement was wholly v…
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State v. Anders, 560 So. 2d 288 (Fla. 4th DCA 1990)…06 So. 2d 1043, rev. denied, 511 So. 2d 1000 (Fla.1987) the defendant relied on Glosson and Cruz in his motion to dismiss. The trial court considered the two prongs of the entrapment defense (objective and subjective) separately. In State v. Garcia, 528 So. 2d 76 (Fla. 2d DCA), rev. denied, 536 So. 2d 244 (Fla.1988) the defendants also argued entrapment as a defense distinct from due process. However, the court treated the objective entrapment defense as if it were the same as, or included in, the due proces…
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State v. Smith, 575 So. 2d 314 (Fla. 2d DCA 1991)…e entrapment defense is not necessarily contained in the depositions. Likewise, the depositions do not contain the testimony of a private citizen whose involvement in these transactions may be critical to the entrapment defense. See State v. Garcia, 528 So. 2d 76 (Fla. 2d DCA), review denied, 536 So. 2d 244 (Fla.1988). There is nothing to prevent the trial court from resolving this issue prior to trial, but the factual basis for the ruling must be derived either from a sworn motion or from evidence introduc…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cruz v. State, 465 So. 2d 516 (Fla. 1985)
- State v. Boyce E. Glosson, 462 So. 2d 1082 (Fla. 1985)
- Wilson v. Florida, 473 U.S. 905 (U.S. 1985)
- Christoffersen et ux. v. United States, 473 U.S. 905 (U.S. 1985)
- United States v. Valencia, 645 F.2d 1158 (2d Cir. 1980)
- State v. Perez, 438 So. 2d 436 (Fla. 3d DCA 1983)
- Joseph v. State, 477 So. 2d 9 (Fla. 3d DCA 1985)
- United States v. Bradley, 820 F.2d 3 (1st Cir. 1987)
- United States v. Valencia, 669 F.2d 37 (2d Cir. 1981)