The issues in this appeal concern the defense of entrapment. A jury found appellant Troy Anthony Foster guilty of unlawful sale of a controlled substance after Foster sold crack cocaine to an undercover officer. On appeal, Foster contends that: (1) he was entrapped as a matter of law because the undercover officer did not have reasonable cause to believe Foster was predisposed to sell drugs before approaching him; (2) the district court did not properly instruct the jury on the defense of entrapment; and (3) the district court erred by admitting evidence of his eight-year-old conviction for possession of a controlled substance on the issue of his predisposition to commit the instant offense.
To the extent that our prior case law required police to have reasonable cause to believe an individual is predisposed to commit a crime before targeting that individual in the context of an undercover operation, it is overruled. Therefore, we conclude that Foster was not entrapped as a matter of law. We further conclude that the district court properly instructed the jury on the defense of entrapment. Finally, we conclude that testimony concerning the circumstances of Foster's prior conviction for possession of a controlled substance was properly admitted to prove his predisposition to commit the charged offense.
The Consolidated Narcotics Unit ("CNU")
A female undercover officer walked in the targeted area in an attempt to purchase crack cocaine from black males.
At trial, Foster argued that he was entrapped because the CNU did not have reasonable cause to believe Foster was predisposed to sell drugs before approaching him. Following a two-day trial, a jury convicted Foster of unlawful sale of a controlled substance.
Reasonable cause requirement
Relying on Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985), Foster contends that he was entrapped as a matter of law. He argues in the alternative that the district court failed to properly instruct the jury on the law of entrapment. His identification of these issues causes us to critically review our case law concerning the entrapment defense.
As we have often recognized, entrapment is an affirmative defense. See id. at 504, 706 P.2d at 837. The defendant bears the burden of producing evidence of governmental instigation. See id. Once the defendant puts forth evidence of governmental instigation, the State bears the burden of proving that the defendant was predisposed to commit the crime. See id. "Essentially, the defendant bears the burden of production on the first element, while the prosecution subsequently bears the burden of proof on the second element." Id. at 504, 706 P.2d at 837-38. We do not modify this two-part inquiry, which is well settled. We do, however, abandon the rule enunciated in Shrader that "when the police target a specific individual for an undercover operation, they must have reasonable cause to believe that the individual is predisposed to commit the crime." Id. at 501-02, 706 P.2d at 836.
More recently, this court reiterated that "[i]n Nevada, a person's predisposition to commit a crime must be evident before he is targeted, and the authorities must possess `reasonable cause to believe the individual is predisposed to commit the crime.'" Roberts v. State, 110 Nev. 1121, 1132 n. 7, 881 P.2d 1, 8 n. 7 (1994) (quoting Shrader, 101 Nev. at 502, 706 P.2d at 836) (emphasis added).
Generally, other jurisdictions have readily rejected a reasonable cause requirement.
Nevada is in the minority if not the only remaining jurisdiction that imposes a requirement of reasonable cause to believe an individual is predisposed to commit a crime before he or she can be targeted in an undercover operation. Applying this unique requirement to the facts of this case would require us to reverse Foster's conviction because in reality the officer had no reasonable cause to suspect Foster was predisposed to sell drugs before she approached him with her question, "Got forty?" Yet, the police conduct in this case was not unreasonable. Nor can it be characterized as overreaching. Application of the rule to these facts does nothing to deter police misconduct. As can be seen from the facts of this case, adherence to the reasonable cause requirement has the undesirable effect of hampering members of law enforcement in fulfilling their legitimate roles of detecting and preventing criminal activity. We certainly do not condone overreaching or other improper conduct by the police in carrying out their responsibilities. However, we believe the well-settled law of entrapment, which requires the defendant to show evidence of police initiated activity and a consequential showing by the State of the defendant's criminal predisposition, is sufficient protection against the possibility of police excess.
We now believe that the reasonable cause requirement is unnecessary to further the policy supporting the use of the entrapment defense. As this court explained:
Shrader, 101 Nev. at 501, 706 P.2d at 835 (quoting Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958)). We conclude that the reasonable cause requirement unduly restricts reasonably designed police undercover operations implemented to ferret out crime. In the instant case, the CNU conducted the "buy program" in response to a specific problem occurring in downtown Reno. The CNU did not manufacture Foster's crime. We believe that the reasonable cause requirement is unwarranted as a prophylactic device to prevent police misconduct.
Jury instructions on entrapment
Foster also contends that the district court erroneously instructed the jury in regard to his entrapment defense. The record indicates that the district court properly instructed the jury on the defense of entrapment.
Instruction No. 19 is directly quoted from United States v. Skarie, 971 F.2d 317, 320 (9th Cir.1992). We have not previously approved
Evidence of prior conviction
Foster's final contention is that the district court erred by allowing the State to introduce evidence concerning his eight-year-old conviction for possession of a controlled substance to prove that Foster had a predisposition to sell drugs. At trial, the district court admitted evidence regarding Foster's previous conviction for possession of a controlled substance. An officer testified that, in 1989, he obtained Foster's consent to search his vehicle and found twenty-one baggies of marijuana. As a result, Foster was charged with possession of a controlled substance with the intent to sell. However, pursuant to a plea agreement, Foster pleaded guilty in 1990 to possession of a controlled substance.
When a defendant raises the defense of entrapment, he places his predisposition to commit the crime in issue. See Shrader, 101 Nev. at 504, 706 P.2d at 837. In the instant case, the district court relied upon NRS 48.045(2)
NRS 48.055 denominates the methods by which character may be proven as follows:
The Advisory Committee Note accompanying the 1975 version of Federal Rule of Evidence 405, upon which NRS 48.055 is based, states:
Although a conviction for possession of marijuana would not normally be relevant to the issue of a defendant's predisposition to sell crack cocaine, the evidence showed that Foster possessed twenty-one baggies of marijuana for the purpose of selling them. Therefore, we conclude that the evidence concerning Foster's 1990 conviction was of a similar character to the instant offense.
In regard to the second factor, we conclude that Foster's 1989 conduct was not too remote in time to be relevant to the issue of his predisposition to sell drugs in 1997. Finally, we do not perceive in this case that the probative value of the State's evidence was substantially outweighed by the risk of unfair prejudice. The jury was instructed that the evidence was to be considered on the issue of Foster's predisposition to commit the act currently charged against him. The evidence was relevant to that issue and was not unduly inflammatory or confusing. Little time was expended in presenting the evidence, and so no argument can be made that the jury's focus was disproportionately trained to this incident rather than to the charged crime.
We overrule Shrader to the extent that it requires the police to have reasonable cause to believe an individual is predisposed to commit a crime before the police may target that individual in the context of an undercover operation. Therefore, we conclude that Foster was not entrapped as a matter of law. We also conclude that the district court properly
ROSE, C.J., YOUNG, MAUPIN, SHEARING, LEAVITT and BECKER, JJ., concur.
(1) whether the defendant readily responded to the inducement offered;
(2) the circumstances surrounding the illegal conduct;
(3) the state of mind of a defendant before the government agents make any suggestion that the defendant shall commit a crime;
(4) whether the defendant was engaged in an existing course of conduct similar to the crime for which the defendant is charged;
(5) whether the defendant had already formed the design to commit the crime for which the defendant is charged;
(6) the defendant's reputation;
(7) the conduct of the defendant during negotiations with the undercover agent;
(8) whether the defendant has refused to commit similar acts on other occasions;
(9) the nature of the crime charged;
(10) the degree of coercion which the law officers contributed to instigating the transaction relative to the defendant's criminal background. Dion, 762 F.2d at 687-88 (citations omitted).