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Drug Defendant Can Offer Clean Record As Evidence of Entrapment, Says 9th Circuit


February 1998

On January 22, the 9th U.S. Circuit Court of Appeals said in a 2-1 decision that a San Diego jury should have heard evidence of the defendant's clean criminal record in deciding whether the defendant was entrapped in a drug deal by an undercover informant (U.S. v. Thomas, CA9, No. 96-50110, 1/22/98, 62 CrL 1371) (Bob Egelko, "Court Allows Entrap Defense," Orange County Register, January 23, 1998).

Defendant Bobby Bourne Thomas was convicted of selling 3 pounds of methamphetamine in San Diego County in 1992. Thomas claimed that the informer enlisted him into the drug deal for the purpose of helping a mutual friend. Thomas appealed, saying he was not allowed to offer his clean criminal record as evidence in his trial.

The appeals court held that prior good acts, such as clean criminal records, are admissible under Rule 404(b) to prove the defendant's intent provided that the evidence "bears meaningfully on the defendant's lack of a criminal disposition at the time of the government's inducement." The 9th Circuit ruled that character is an essential element of an entrapment defense and that the jury must be able to consider character to find predisposition beyond a reasonable doubt.

Judge Otto Skopil dissented, saying Thomas' lack of a criminal record "simply means that until now he had eluded arrest and conviction."