Third District Court of Appeal
State of Florida
Opinion filed January 4, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-2622
Lower Tribunal No. 08-41616
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Joaquin D. Blanco,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Samantha Ruiz-Cohen, Judge.
Joaquin D. Blanco, in proper person.
Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
Before SUAREZ, C.J., and FERNANDEZ and LOGUE, JJ.
LOGUE, J.
Joaquin Blanco appeals the trial court’s denial of his motion for post-
conviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.
FACTS AND PROCEDURAL HISTORY
Our prior opinion upholding Blanco’s conviction summarized the facts
underlying his conviction as follows:
Blanco was arrested and charged with trafficking when he sold crystal
methamphetamine to an undercover police officer. Blanco claimed he
was induced into making the sale by Jesus Felizzula, a State
confidential informant who Blanco met at an HIV facility. Prior to
trial, the State moved to exclude any reference to Blanco’s HIV
condition or the details of Felizzula’s agreement with the State. The
trial court granted the motion. Defense counsel’s request to voir dire
the jury panel regarding their opinions on entrapment was denied.
Thereafter, defense counsel accepted the jury without renewing his
objection to the restricted voir dire.
At trial, Blanco revealed that he met Felizzula while attending a
facility for persons with HIV/AIDS where Felizzula served as
Blanco’s mentor. The two men later became lovers. At the time,
Felizzula, a convicted drug trafficker, was under a plea agreement
which required him to produce trafficking level cases for the State.
Blanco testified that he knew that Felizzula took drugs, and he was
very much against it. Blanco did not take illegal drugs, and had never
before or since this occurrence sold drugs.
At one point in their relationship, Blanco, who was a real estate agent,
sold Felizzula’s home. Felizzula was not satisfied with the amount he
received from the sale. Subsequently, Felizzula moved out of the
state, but called Blanco asking for his assistance in arranging a drug
deal in Miami. Felizzula insisted that Blanco should do this to prove
his love and to make amends for the money lost on Felizzula’s home.
After repeated refusals, Blanco eventually relented and agreed to
facilitate the sale.
2
Felizzula contacted his police handler, who referred him to
undercover narcotics agent Chris Villano. Felizzula informed Villano
that Blanco would sell him five eight-balls of crystal
methamphetamine. Villano’s telephone call to Blanco was recorded
and played to the jury. The two men began with a political discussion
and then talked about the drug deal using coded language. Villano
explained that conversations of this type usually used a code to avoid
detection. Blanco testified that because he was unfamiliar with the
code being used, he simultaneously received instructions from
Felizzula online. The telephone call was followed by an exchange of
telephonic text messages through which Blanco and Villano agreed to
meet. Blanco testified that prior to meeting with Villano, Felizzula
had someone deliver a white envelope to him. When he later met with
Villano, Blanco turned over the envelope in exchange for the amount
of cash previously agreed upon. The contraband was confiscated and
Blanco was immediately arrested. A subsequent search of Blanco’s
home and car revealed no other drugs. The jury rejected Blanco’s
entrapment defense and returned a guilty verdict.
Blanco v. State, 89 So. 3d 933, 935-36 (Fla. 3d DCA 2012).
After his conviction was upheld on direct appeal, Blanco filed a post-
conviction motion in the trial court alleging ineffective assistance of trial counsel.
Among other claims, he argued that his trial counsel was ineffective in failing to
move to dismiss based on his entrapment defense. The trial court disagreed. It
concluded that the failure to move to dismiss did not reflect ineffective assistance
of counsel because the question of whether Blanco was predisposed to commit the
crime was a question for the jury given the facts of this case. The trial court denied
Blanco’s post-conviction motion and this appeal followed.1
1In addition to Blanco’s argument regarding predisposition, the trial court rejected
seven other claims he raised in his post-conviction motion. We affirm the trial
court’s rulings on those claims without further discussion.
3
ANALYSIS
On appeal, Blanco argues that the trial court erred in concluding that the jury
could rely upon his use of drug-trade jargon during the drug transaction to prove
predisposition. He contends that these statements cannot form a basis for a finding
of predisposition because the statements were made after the government induced
him to traffic in drugs. He essentially asks this court to fashion a rule that a
defendant’s conduct after the government induced him to commit an offense is
never relevant to prove predisposition. This proposed rule paints with too broad a
brush. While “care must be taken in establishing the predisposition of a defendant
based on conduct that results from the inducement,” Munoz v. State, 629 So. 2d
90, 99 (Fla. 1993), post-inducement acts and statements can, in appropriate
circumstances, be relevant to prove that the defendant was predisposed to commit
the crime before he was induced to do so. This case is one such example.
Florida law recognizes two distinct entrapment defenses: objective
entrapment and subjective entrapment. Objective entrapment focuses on law
enforcement’s conduct and whether the conduct amounts to a due process violation
under article I, section 9, of the Florida Constitution. Munoz, 629 So. 2d at 98-99.
This inquiry turns on whether “the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the government from
invoking judicial processes to obtain a conviction.” State v. Glosson, 462 So. 2d
4
1082, 1084 (Fla. 1985) (citation omitted) (holding an agreement to pay an
informant a contingent fee conditioned on his cooperation and testimony in
criminal prosecutions violated constitutional due process). A due process violation
occurs regardless of a defendant’s predisposition to commit the crime. Id.
In contrast, subjective entrapment focuses on whether the defendant was
predisposed to commit the crime. Jones v. State, 114 So. 3d 1123, 1126 (Fla. 1st
DCA 2013). This inquiry turns on whether the defendant was an “unwary
innocent” who had no predisposition to commit the crime but was lured into doing
so, or, instead, an “unwary criminal” who readily availed himself or herself of the
opportunity to commit the crime. Id. (quoting Mathews v. United States, 485 U.S.
58, 63 (1988)). Only the subjective entrapment defense is implicated in this appeal.
The Florida legislature codified the elements of the subjective entrapment
defense in section 777.201, Florida Statutes (2010). It provides:
(1) A law enforcement officer, a person engaged in cooperation with a
law enforcement officer, or a person acting as an agent of a law
enforcement officer perpetrates an entrapment if, for the purpose of
obtaining evidence of the commission of a crime, he or she induces or
encourages and, as a direct result, causes another person to engage in
conduct constituting such crime by employing methods of persuasion
or inducement which create a substantial risk that such crime will be
committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person
proves by a preponderance of the evidence that his or her criminal
conduct occurred as a result of an entrapment. The issue of
entrapment shall be tried by the trier of fact.
5
Id.2
In analyzing this statute, the Florida Supreme Court directed courts to
consider three questions. Munoz, 629 So. 2d at 99-100. First, did an agent of the
government induce the defendant to commit the offense? Id. at 99. This step places
the burden on the defendant to prove inducement by a preponderance of the
evidence. Id.
Second, was the defendant predisposed to commit the offense? Id. This step
places the initial burden on the defendant to establish a lack of predisposition. Id. If
the defendant produces evidence of a lack of predisposition, the burden then shifts
to the prosecution to rebut this evidence by proof beyond a reasonable doubt. Id.
“The state may prove predisposition with evidence of the defendant’s prior
criminal activities, his reputation for such activities, reasonable suspicion of his
involvement in such activity, or his ready acquiescence in the commission of the
crime.” Jones, 114 So. 3d at 1126 (quotation and citation omitted). “However,
admission of evidence of predisposition is limited to the extent it demonstrates
2 Section 777.201 may not, by its express terms, limit its application to subjective
entrapment, but the Florida Supreme Court held that it does not govern the
objective entrapment defense: “in the presence of egregious law enforcement
conduct, an entrapment defense is to be evaluated under the due process provision
of article I, section 9, of the Florida Constitution.” Munoz, 629 So. 2d at 99. This
statement reflects the principle that the legislature cannot abrogate a defendant’s
due process rights. Id. at 98.
6
predisposition on the part of the accused both prior to and independent of the
government acts.” Munoz, 629 So. 2d at 99.3
Third, should the question of subjective entrapment be submitted to the jury?
Id. at 101. Generally, this defense should be submitted to the jury because the
issues of inducement and predisposition “ordinarily present questions of disputed
facts to be submitted to the jury as the trier of fact.” Id. at 100. However, there are
cases where the trial court can rule that the defendant was entrapped as a matter of
law. This occurs when “the factual circumstances of a case are not in dispute,” “the
accused establishes that the government induced the accused to commit the offense
charged,” and “the State is unable to demonstrate sufficient evidence of
predisposition prior to and independent of the government conduct at issue.” Id.4
3If there is no evidence of inducement or a lack of predisposition, a defendant is
not entitled to a jury instruction on subjective entrapment. See, e.g., Davis v. State,
937 So. 2d 300, 303-04 (Fla. 4th DCA 2006).
4 Although section 777.201 arguably requires the issue of entrapment to be
submitted to the jury, the Florida Supreme Court rejected such an interpretation of
the statute:
Under the constitution of this state, juries, as the finders of fact,
decide factually disputed issues and judges apply the law to the facts
as those facts are found by the jury. To construe section 777.201 as
mandating that the issue of entrapment is to be submitted to a jury for
determination as a matter of law would result in an unconstitutional
construction that would violate article I, section 9, of the Florida
Constitution.
Munoz, 629 So. 2d at 101.
7
In this case, Blanco’s testimony established a prima facie case of
inducement. See Jimenez v. State, 993 So. 2d 553, 556 (Fla. 2d DCA 2008)
(holding, under similar circumstances, that the defendant demonstrated
inducement); State v. Henderson, 955 So. 2d 1193, 1195 (Fla. 4th DCA 2007)
(“Inducement includes persuasion, fraudulent representations, threats, coercive
tactics, harassment, promises of reward, or pleas based on need, sympathy or
friendship.”) (emphasis added) (quotation and citation omitted). He also provided
evidence of a lack of predisposition based on his testimony that he had no criminal
record or history of distributing drugs. See Jimenez, 993 So. 2d at 556 (“[The
defendant] . . . sufficiently alleged that he had no predisposition to commit the
crime by claiming that he has no prior criminal history and ‘no history whatsoever
of engaging in drug distribution.’”).
Because Blanco established a prima facie case of inducement, the burden
shifted to the State to present sufficient evidence of predisposition. Citing to
Munoz, Blanco argues that his use of drug-trade jargon during the drug transaction
is irrelevant to prove predisposition because it occurred after the government
induced him to commit the offense. He primarily relies on the following passage
from the Munoz opinion: “admission of evidence of predisposition is limited to the
extent it demonstrates predisposition on the part of the accused both prior to and
independent of the government acts.” 629 So. 2d at 99.
8
Blanco is misreading Munoz on this point. The passage of Munoz he cites
does not categorically bar consideration of post-inducement conduct when
deciding whether the defendant was predisposed to commit the crime. Rather, the
passage indicates that post-inducement evidence can be admissible if it tends to
show that the defendant was predisposed to commit the crime before the
government induced him. In other words, the evidence may arise post-inducement,
but it must tend to establish that the defendant was predisposed to commit the
crime before the inducement.
Other passages in Munoz support this interpretation. The Court explained
that “[i]n rebutting the defendant’s evidence of lack of predisposition, the
prosecution may make ‘an appropriate and searching inquiry’ into the conduct of
the accused.” Id. at 99. It further stated that “care must be taken in establishing the
predisposition of a defendant based on conduct that results from the inducement.”
Id. Requiring care is not the same as adopting a blanket exclusion.
Consider the following hypothetical: at a post-inducement drug deal, the
defendant is recorded as saying, “I am glad we met last week and agreed to do
business. I have bought this drug fifty times over the last two years from many
different dealers, but never before did I get such good product at such a reasonable
price.” This statement obviously tends to show that the defendant was predisposed
9
to buy drugs prior to the inducement: it reflects that the defendant was regularly
buying drugs for years before the inducement.
Blanco’s argument to the contrary, that evidence arising after the
inducement must be excluded because it is per se irrelevant to prove predisposition
to commit the crime before the inducement, has been uniformly rejected by the
courts that have considered it.
In Jones, the First District rejected the argument that Munoz requires a
blanket exclusion of post-inducement evidence. In that case, the State charged the
defendant with drug trafficking after he sold hydrocodone pills to an undercover
police officer. Jones, 114 So. 3d at 1125. The defendant raised a subjective
entrapment defense, and, in response, the State sought to admit a video into
evidence which depicted a different, uncharged incident of a drug transaction
involving the defendant. The defendant sought to exclude this evidence on the
basis that the transaction occurred after an officer induced him to purchase drugs.
The trial court disagreed with the defendant and admitted the video as rebuttal
evidence. Id. On appeal, the First District affirmed the defendant’s conviction and
rejected his contention that the State may rely only on “pre-inducement” conduct
to establish predisposition. Id. at 1126-27. In doing so, the First District cited to
Munoz:
Appellant presents no legal authority to support his contention that the
State may only rely on “pre-inducement” criminal conduct to establish
10
predisposition. On the other hand, the supreme court in Munoz
indicated that post-inducement acts can be relevant to proving
predisposition. Discussing methods the prosecution may employ to
rebut an entrapment claim, the court stated, “care must be taken in
establishing the predisposition of a defendant based on conduct that
results from the inducement.” Munoz, 629 So. 2d at 99 (emphasis
added). Arguably dictum, this statement nonetheless refutes
Appellant’s assertion that criminal acts undertaken after alleged
inducement by law enforcement are categorically irrelevant to prove
predisposition.
Id. at 1126.
Moreover, this court’s earlier opinion upholding Blanco’s conviction
demonstrates that post-inducement conduct can be relevant to prove predisposition.
Among other issues raised on appeal, this court had to decide whether the portion
of the taped conversation between Blanco and the undercover officer discussing
political issues was relevant to prove predisposition. Blanco, 89 So. 3d at 936. The
political discussion had immediately preceded Blanco’s use of drug-trade jargon to
complete the drug deal. Id. at 935. Blanco argued that the political discussion was
irrelevant and highly prejudicial. The State responded by asserting that the
evidence “tended to rebut Blanco’s portrayal of his character as one easily
influenced.” Id. at 936. This court agreed with the State that the evidence was
relevant and admissible, citing to, among other cases, Munoz. Id. at 937.5
5 Arguably, this court’s holding regarding whether the political discussion was
relevant to prove predisposition resolved the question here regarding whether post-
inducement statements can be relevant to prove predisposition. The State, however,
did not raise a “law of the case” argument in the trial court or on appeal. We
therefore decline to reach this issue.
11
In addition, the Fifth District has held that the post-inducement use of drug-
trade jargon is relevant to prove predisposition. In Sallomi v. State, 629 So. 2d 969
(Fla. 5th DCA 1993), the State charged the defendant with possessing and selling
cocaine. At trial, the defendant claimed entrapment. The jury rejected his defense
and convicted him of the charged offenses. On appeal, the Fifth District held that
sufficient evidence supported a finding of predisposition, including the defendant’s
recorded references to his supplier, the presence of cocaine in the trunk of his car,
and his demand for cash up front for an “eight ball” (drug-trade jargon referring to
an eighth of an ounce of cocaine). Id. at 970.
As Munoz, Jones, and Sallomi recognize, a defendant’s use of drug-trade
jargon at the post-inducement drug transaction can form the basis of a jury’s
finding that the defendant was an experienced and willing drug dealer. Here, the
jury heard Blanco’s testimony and the recording of his conversation with the
undercover officer. It had the opportunity to determine whether he sounded like an
“unwary innocent” or, instead, an “unwary criminal” who readily availed himself
of the opportunity to commit the crime. It is within the province of the jury to do
so. See Munoz, 629 So. 2d at 100. (“[W]e construe section 777.201 as requiring
the question of predisposition to be submitted to a jury when factual issues are in
dispute or when reasonable persons could draw different conclusions from the
facts.”); Vanhoosen v. State, 469 So. 2d 230, 231 (Fla. 1st DCA 1985) (“[Florida
12
Rule of Criminal Procedure] 3.190(c)(4) motions should be granted rarely since
factual disputes are to be resolved by the jury.”).
For these reasons, we reject Blanco’s contention that a defendant’s post-
inducement use of drug-trade jargon during a drug transaction is per se irrelevant
to the issue of whether the defendant was predisposed to traffic in drugs.
Affirmed.
FERNANDEZ, J., concurs.
13
Blanco v. State
3D14-2622
SUAREZ, C.J. (dissenting).
I respectfully dissent. The record in this case is completely void of any
evidence that Blanco was predisposed to commit the crime in question. Without
that evidence, the elements of Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993) are
not met. Therefore, as a matter of law, this is a valid case of entrapment and the
issue should have been ruled on by the trial judge and should never have gone to
the jury.
Despite its correct recitation of the law of entrapment, the majority relies on
certain language – used by Blanco only during the transaction and only after
inducement by the state to enter into a single drug transaction – as the sole
evidence that Blanco was allegedly predisposed to commit the offence. “This view
overlooks even the common connotation of the word ‘pre-disposition.’ The prefix
pre- indicates that the disposition must exist before the first contact with the
government.” Farley v. State, 848 So. 2d 393, 396 (Fla. 4th DCA 2003).
Moreover, the majority fails to acknowledge that, unlike the defendants in the
cases it relies upon, Blanco had no prior connection to any criminal activity. The
majority’s conclusion in this case is inconsistent not only with the cases it cites, but
with due process. Soohoo v. State, 737 So. 2d 1108, 1111 (Fla. 4th DCA 1999).
As discussed below, other courts which have addressed entrapment claims by
14
defendants who were situated similarly to Blanco, have found entrapment as a
matter of law, reversed the convictions and discharged the defendants. That is
what should have occurred in this case.
Applying the subjective entrapment defense as described by the majority to
this case, it is undisputable that the first element of the test under Munoz, (whether
an agent of the government induced the Defendant to commit the crime) was met
in this case – an agent of the state induced Blanco to commit the crime at issue but
only “after repeated refusals” on Blanco’s part. For purposes of the second
element of Munoz (whether the defendant was predisposed to commit the offense)
the only possible proper proof the state could have provided is that of a “ready
acquiescence in the commission of the crime.” Jones v. State, 114 So. 3d 1123,
1126 (Fla. 1st DCA 2013). This is so because there was absolutely no evidence of
the other potential areas of proof: “the defendant’s prior criminal activities;” a
“reputation for such activities;” or “reasonable suspicion of his involvement in
such activity.” Majority at 7. However, the majority has already conceded that
Blanco agreed to participate in the drug transaction only “after repeated refusals,”
so there actually was no proof of “ready acquiescence” on his part.
The record is devoid of any proper evidence supporting any notion of
predisposition on Blanco’s part to commit the offense. To get around this problem,
the majority concludes that “post-inducement evidence can be admissible if it tends
15
to show that the defendant was pre-disposed to commit the crime.” Applying
circular reasoning, the majority concludes that because Blanco was induced to
commit the crime, he was necessarily predisposed to commit it. Such reasoning
has been properly rejected. See Farley, 848 So. 2d at 398 where, citing federal
precedent, the Court rejected the state’s claim that the fact that the defendant
participated in the crime indicated that he was predisposed to commit the crime.
In an attempt to bolster its circular reasoning, the majority creates a
hypothetical which is completely inapplicable to the facts of this case. In the
majority’s hypothetical, a targeted person is recorded, post-inducement, making
reference to fifty prior drug transactions. The majority also relies upon a case in
which a video of prior criminal activity existed and, because of that, the appellate
court found that the defendant was predisposed to commit the crime. It is obvious
to any reader that proof of or discussion of prior criminal activity can, by itself, be
evidence of predisposition. The problem is, those are not the facts in this case.
Rather, in this case there was absolutely no evidence that Blanco had any prior
criminal involvement of any sort.
To address that dearth of evidence, the majority somehow conflates a
reference to a political discussion as proof that Blanco was “not one easily
influenced” with the notion that post-inducement use of jargon is proof of
predisposition. First, there is simply no precedent for the notion that holding
16
strong political opinions is somehow proof that one is predisposed to commit a
crime, and such a concept should be easily discarded. More importantly, where
there was absolutely no proof of any prior involvement in any sort of criminal
activity, Blanco’s use of jargon – which was undisputedly provided by the
informant during the transaction at issue – simply does not satisfy the requirements
of Munoz v State, 629 So. 2d 90 (Fla. 1993).
An analysis of the existing entrapment case law demonstrates this point.
There are cases, like those cited by the majority, where the defendant claiming
entrapment has a demonstrable history of criminal activity. Sallomi v. State, 629
So.2d 969 (Fla. 5th DCA 1993) (defendant therein made reference to prior criminal
activity in the form of reference to his “supplier.”); Jones v. State, 114 So. 2d 1123
(Fla. 1st DCA 2013) (defendant “had three prior felony convictions involving the
sale of drugs.”). Whatever post-inducement activity was at issue in those cases is
really irrelevant in light of the already existing evidence of predisposition in each
of the cases.
In contrast, other cases involve defendants – like Blanco – with no known
prior criminal connection. In those cases, the courts have found entrapment as a
matter of law and reversed the convictions – even on claims of ineffective
assistance of counsel such as that here. For example, in Nadeau v. State, 683 So.
2d 504 (Fla. 4th DCA 1995) the defendant with no criminal record and no known
17
reputation for criminal behavior was “coached … in the parlance of the drug
trade.” Id. at 505. In reversing the conviction in that case based on an improper
denial of a motion for acquittal, the Fourth District found that “the law
enforcement conduct in this case was so outrageous as to constitute denial of
appellant’s due process rights.” Id. at 506. The court there also found that Nadeau
proved subjective entrapment as a matter of law. In Jimenez v. State, 993 So. 2d
553, 556 (Fla. 2d DCA 2008) a confidential informant induced the defendant to
engage in a drug transaction by taking advantage of a pre-existing friendship. The
court there reversed the conviction based on claims of ineffective assistance of
counsel for failing to move to dismiss based on an entrapment defense, finding the
allegations of entrapment unrefuted where the defendant claimed “he had no prior
criminal history” and “no history whatsoever of engaging in drug distribution.”
Similarly in Madera v. State, 943 So. 2d 960 (Fla. 4th DCA 2006), “the defendant
was thirty seven years old with absolutely no criminal history, unknown to law
enforcement officers and gainfully employed in lawful activity at the time the
confidential informant first approached him.” The defendant there also “repeatedly
told [the informant] that he did not use or sell illegal drugs.” In language which is
wholly applicable to the facts of this case, the court there found:
“there would have been no crime without the CI’s prodding and
improper conduct. At the time the defendant was gainfully employed
at a lawful occupation, and had no prior criminal activity, and was not
18
even suspected of criminal activity. The CI was used here, not to
detect crime, but to manufacture it.”
Id. at 962.
Finding a due process violation, the court there reversed the conviction and found
the defendant objectively entrapped. See also, Curry v. State, 876 So. 2d 29, 31
(Fla. 4th DCA 2004) (reversing a conviction where there was “no indication Curry
was involved with any criminal undertaking prior to the involvement of law
enforcement” and “it was only after an abundance of phone calls from the CI, and
later the detective” that she acquiesced in committing the crime); Farley v. State,
848 So. 2d 393, 396 (Fla. 4th DCA 2003) (reversing conviction where prior to
receiving spam email from the government, there was no indication that defendant
was inclined to commit the offense, was thus not predisposed to commit the crime
and where the state presented no evidence of past deviant behavior or criminal
activity, entrapment was shown as a matter of law. Trial court should have granted
defendant’s motion to dismiss.)6; Dial v. State, 799 So. 2d 407, 409 (Fla. 4th DCA
2001) (finding appellant had no criminal record and there was no evidence she was
suspected of criminal activity before supervisor repeatedly pressured her into
criminal scheme); Robichaud v. State, 658 So. 2d 166, 168 (Fla. 2d DCA 1995)
6 The Court there aptly quoted Jacobson v. United States, 503 U.S. 540, 553 (1992)
for the rule which should be applied in this case: “when the Government’s quest
for convictions leads to the apprehension of an otherwise law-abiding citizen who,
if left to his own devices, likely would have never run afoul of the law, the courts
should intervene.”
19
(reversing trafficking conviction where CI induced appellant to participate in drug
buy by appealing to his sympathy for a sick friend and threatening him that boys
from the mafia would “take care of him” and where detective had no information
that defendant was involved in drug dealing and had no prior drug offenses); State
v. Anders, 596 So. 2d 463, 468 (Fla. 4th DCA 1992) (where informant had no
reason to believe that Anders had ever engaged in drug trafficking, DEA rejected
case against him in light of lack of criminal background, applying objective test to
reverse conviction finding there was no “specific ongoing criminal activity by
Anders prior to the informant’s scheme.”). See also, 22 CJS, Criminal Law §76
“Only those statements of the accused that indicate a state of mind untainted by the
inducement are relevant to show predisposition. … The predisposition must be
independent of the attention the government agent directed at the defendant. …
Although no factor is controlling, the accused’s reluctance to engage in criminal
activity is the most important.” (emphasis added) 16 Fla. Jur. 2d Crim. Law §141
“‘Predisposition’ is not present when one has no prior criminal history related to
the offense at issue.”
Finally, the majority somehow seems convinced that because the jury
reached a guilty verdict in the face of a claim of entrapment, that this Court may
not conclude otherwise. The list of just-cited cases is proof that such a conclusion
is incorrect. It is one of the functions of this Court to undo injustice when the law
20
has been improperly applied. To quote the majority, this is one of those cases. As
stated in Cruz v. State, 465 So. 2d 516, 520 (Fla.), cert. denied, 473 U.S. 905
(1985): “The violation of the principles of justice by the entrapment of the unwary
into crime should be dealt with by the court no matter by whom or at what stage of
the proceedings the facts are brought to its attention.” quoting Sorrels v. United
States, 287 U.S. 435, 457 (1932) (Roberts, J. in a separate opinion).
It is undisputable that under the proper application of the principles and tests
of Munoz, Blanco was entrapped by a former lover to engage in a single criminal
activity. Blanco was entrapped as a matter of law and the conviction should be
overturned. His trial counsel should have moved for judgment of acquittal and the
trial court should have granted that motion. For the reasons given above, I would
reverse the conviction.
21
22
Blanco v. State
Court: District Court of Appeal of Florida
Date filed: 2017-01-04
Citations: 218 So. 3d 939
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