[Natsu]

I'm sorry you don't agree with me, but I can't help but point out that you've offered only your own opinions. You've not cited any law or description thereof, nor have you cited any of the court papers in this conversation. I've cited both and given sources for my reasoning.

Further, this is all 1L stuff (i.e. the basics). DRP's lawyers know all this stuff. And yet, as far as I can see, they didn't even try this argument. There's only one reason a lawyer doesn't raise an argument that would get their client off the hook: because it's bogus. (Raising bogus arguments in court is a bad idea... it wastes everyone's time and angers the judge, do it enough and you can get sanctioned.)

And they did cover the hitman issue--they most certainly did try to suppress the evidence that he hired a hitman (just not with arguments over entrapment). You can read more here:

https://s3.amazonaws.com/s3.documentcloud.org/documents/1391...

But not once did they say 'entrap'. You seem to be trying to argue that DPR wasn't predisposed to hiring hitmen before the cops got there, but that the cops convinced him that it was his only option.

I've covered why that doesn't cut it: the police CAN join your conspiracy, they CAN lie to you, they CAN give you the means (and the idea!) to commit the crime, and he DID have other options (he doesn't have to like them). Each of those cuts out elements of his defense, leaving nothing.

So the case you have to make is that the police overcame his resistance to hiring a hitman, but the chat logs given never show him saying "no, I don't want to do this" they show him as eager to make use of this "solution."

To establish a claim of entrapment, you have to show that he resisted the idea and that the police overcame this resistance. From there, courts may follow one of two approaches: deciding whether this defendant had been predisposed to commit the crime or whether this approach would have caused any law-abiding citizen to commit the crime.

I've been pointing to the latter approach, as I think it's more productive to take an objective approach than a subjective one. Were a law-abiding citizen in DPR's shoes, they would NOT have hired the hitman. A law-abiding citizen hit by this would have turned to the police for protection from the blackmail, not to a hitman.

The discussion of necessity and duress is relevant to whether he had "other options." Both of those are arguments that one does not have other real options. Because both of those unqestionably fail, he had other options.

To establish entrapment, you have to prove that he had no way out and that they used this to overcome resistance. In the example of actual entrapment, we have someone shown as refusing to commit a crime for money, then agreeing only because someone's life is at stake and the papers aren't really important.

Nowhere have you cited any of the chat logs with him showing resistance to hiring a hitman (this is required!). And then you have to show them overcoming this resistance.

Maybe if you can show the police telling him that police protection is worthless or shooting down his ideas for avoiding hiring a hitman you could get somewhere, but... no such evidence is on offer.

Rather, all of the evidence points to the fact that he was predisposed to commit this crime. From the legal brief cited above:

           The next day, Ulbricht told another coconspirator, CC-2, about the theft.  (Id.)  Ulbricht expressed surprise that the Employee had stolen from him given that he had a copy of the Employee’s driver’s license.  (Id. at 6-7.)  Later in the conversation, Ulbricht and CC-2 discussed the possibility that the Employee was cooperating with law enforcement, and CC-2 remarked:  

[A]s a side note, at what point in time do we decide that we’ve had enough of someone[’]s shit, and terminate them? Like, does impersonating a vendor to rip off a mid-level drug lord, using our rep and system; follows up by stealing from our vendors and clients and breeding fear and mis-trust, does that come close in your opinion. (Id. at 7.) Ulbricht responded, “terminate? execute?” and later stated, “I would have no problem wasting this guy.” (Id.) CC-2 responded that he could take care of it, and stated that he would have been surprised if Ulbricht “balked at taking the step, of bluntly, killing [the Employee] for fucking up just a wee bit too badly.” (Id.) Later that day, Ulbricht told CC-2 that he had solicited someone to track down the Employee. (Id.)

So if you want to argue this, take facts cited from court papers (e.g. papers filed by DPR's lawyers), then fit those to the elements of entrapment. Show me from the chat logs or similar sources where he exhibited resistance to the idea, then show me how the police convinced him to give up that resistance.

Because that's how you establish entrapment.

[themeek]

For the very same reasons through the rest of the thread, you continue to argue a straw man.

You sound like you're a very insistent and dogged debater.

It would be becoming of you to take your passion for argumentation and apply it to the arguments being made by the opposition. I'm certain that if you did this you would have more success.

I would reply point by point but as they say "the definition of insanity is doing the same thing over and over again, but expecting different results."

Thanks again for the discussion. Hope to see you continue to be verbose (but perhaps more charitable) in other threads around HN.

[Natsu]

A straw man is beating up a weakened version of someone's case. I went with the facts before the Court, which are the only facts relevant to making a legal determination. Neither this Court nor a court of appeals is going to look at anything else due to the rules of evidence. Moreover, unless he's already raised the issue of entrapment (and I don't think he has), it's almost certainly been waived and cannot be raised on appeal. You can personally believe that the facts presented in court are wrong, if you prefer, but they're not relevant to a legal analysis. Making a non-legal analysis of whether it's "entrapment" makes zero sense--entrapment is a legal concept and divorcing the notion of entrapment from how a court would determine something is entrapment is insensible. It doesn't answer any real-world questions and it would serve only to mislead, as courts follow rules to determine things like these.

To establish entrapment, you need to locate some place in which he demonstrated some resistance to hiring a hitman, I was unable to find any such evidence in materials before the Court. If you think otherwise, quote anything you like from his log or any other evidence before the Court that shows him being averse to hiring a hitman until they talked him into it.

Without that, you don't get to claim entrapment, legally. The Court would just say you were already predisposed to commit the crime and ignore your protests about how the cops fooled you, as is shown repeatedly in the law guide. Moreover, the burden of proof is on you to establish entrapment, not the other way around. So it's not enough to say that but for the theft/blackmail he wouldn't have done this, you have to show him resisting the idea.

Was he set up by the cops? Undoubtedly so. Every single example in the law guide of non-entrapment shows the cops setting someone up. But there are standards for entrapment which must be met by evidence properly presented in court. If his lawyers do not make this argument, it is because they cannot. If someone suggests that "hey, you should hire this guy to kill that guy who's causing you problems," you will be in legal trouble if you go along with their suggestion instead of refusing it.

So 'charitable' has nothing to do with it. The evidence before the Court isn't very charitable to him. You might argue that this is unfair, but this is how you determine something like entrapment. That's why there are long fights over the evidence (like the one I linked earlier), because that determines what they have to work with.

[Natsu]

We can no longer reply in line, but:

> Given (A) that blackmail is coercion (psychological pressure), and (B) coercing someone into committing a crime is entrapment. Would (A) and (B) then not imply that (C) blackmailing should count as entrapment?

(A) isn't sufficient motive for hiring someone to murder someone (you have no right to use deadly force to protect mere property). Also, even if someone hold a gun to your head and tells you to kill someone else, it's still criminal if you do that (it's one of the examples in the law guide). This makes it nearly impossible to entrap someone into hiring a hitman, without even getting into the particulars of this case.

(B) is necessary, but not sufficient, to support a claim of entrapment.

A person must prove that they put up some resistance to committing the crime and that the police or their agents overcame this. So he needs a quote of him saying "NO" to the idea in the chat logs (or something equivalent to this, in the admitted evidence), then police pressure, then him changing his mind.

You can see how it played out in the law guide sample: the young lady refuses to commit the crime for money, but relents when a police agent tells her that lives are at stake. That refusal is very important!

As your source correctly states, a "defendant is assumed to have the responsibility to turn down an opportunity to commit a crime when posed by a law enforcement officer." The quotes quoted by the Court demonstrate the opposite, that he was very agreeable to the police's suggestion once offered, failing to meet this duty. Those demonstrate against the resistance he must show that he put up to claim entrapment.

If you can find something in the chat log, his legal briefs, or wherever that proves he said "no" before he said "yes", please offer it. Your source correctly confirms that he has the burden of proof to show this and establish entrapment.

> Law enforcement did not charge him for the hitman so the defense did not need to put up a case for entrapment

The hiring of the hitman was an element of the "continuing criminal enterprise" (CCE) charge, for which he was later convicted. This has been covered in previous discussions of the court documents. I am not clear on why you are still objecting to this.

I am also confused by your version of "charitable." It's not my intent to be disrespectful, but I can't reasonably claim that a case exists without evidence for it. I can't claim he's legally innocent, nor that he was denied due process, given that he was convicted by a jury of his peers in a court of law. I can't assume things to be in DPR's favor without admissible evidence showing that when analyzing how the law would treat this scenario. Nor can I shift the burden of proof in his favor when the law says otherwise.

That's now how law works.

I'm sorry if I come off as harsh, I certainly don't intend that. But you should be aware that real courts are absolutely hostile to such arguments. Not only would you get savaged by opposing counsel, you'd face motions for sanctions for wasting everyone's time.

I'm not going to sue anybody, I'm just going to point out that what you want to argue doesn't work because it doesn't meet the legal definitions :)

DPR can't properly meet either element of entrapment under either the subjective or objective standard due both to a lack of evidence and admitted evidence that shows him being agreeable to the suggestion. As the law guide says, "they're allowed to go after those who would say yes."

[themeek]

> (A) isn't sufficient motive for hiring someone to murder someone (you have no right to use deadly force to protect mere property)...

The charge of entrapment is separate from the severity of the crime someone is entrapped into or whether the entrapment would be considered a sufficient motive, were it not simulated. It is merely enough that the police coerced the defendant.

The blackmail, however, was for a delayed use of force - loss of freedom/liberty - which is tantamount to loss of life, and indeed in this case Ross lost the remainder of his life. It would be uncharitable (again) to suggest that it was merely about property. But (again) all one needs to establish entrapment is threat to property.

> This makes it nearly impossible to entrap someone into hiring a hitman, without even getting into the particulars of this case.

Can you support this argument by citing the law, precedent or a summary? (This claim is not supported by your webcomics.)

> even if someone hold a gun to your head and tells you to kill someone else, it's still criminal if you do that Please stop referring to webcomics as "the" law guide.

Of course its still criminal. Do not confuse this with whether it is entrapment. (If done by the police) It is both entrapment and it is criminal.

Where are you getting the idea that if the police hold a gun to your head to make you shoot someone that isn't entrapment? Can you cite the law or precedent? Again, the webcomic does not cover this: in the webcomic, the police are not holding the gun.

> (B) is necessary, but not sufficient, to support a claim of entrapment

Right, one also needs (A).

> So he needs a quote of him saying "NO" to the idea in the chat logs (or something equivalent to this, in the admitted evidence), then police pressure, then him changing his mind.

This is not the case. If someone never says "NO" because the police never approach a defendant, but the police apply pressure and then make the approach after the pressure is applied, this still counts as entrapment.

> You can see how it played out in the law guide sample: the young lady refuses to commit the crime for money, but relents when a police agent tells her that lives are at stake. That refusal is very important!

Please stop referring to the webcomic as "the" law guide.

The refusal is sufficient, but not necessary to establish in court that there was pressure applied. All the the defense needs to do is show that there was pressure (coercion). One way to do this is to show that the defendant said no, pressure was applied, and then the defendant said yes. But it is not the only way to establish that there was coercion/pressure.

As my source correctly states to qualify the quote you cherrypicked:

"Instead, a defendant will need to prove that the law enforcement officer took additional actions to force a person into an illegal act. The following may be considered sufficient actions to force a person into committing a crime they otherwise wouldn’t:

- Fraudulent claims or promises

- Depending on the specifics, verbal harassment or flattery

- Threats against a person, their property, or their job"

That is, "the defendant has to offer evidence to clear their willing involvement in a crime." In this case, the defendant would offer the fact that they were blackmailed and defrauded.

> If you can find something in the chat log, his legal briefs, or wherever that proves he said "no" before he said "yes", please offer it. Your source correctly confirms that he has the burden of proof to show this and establish entrapment.

It is not my responsibility to establish this. It is intellectually dishonest to presume that it is my responsibility to do this. It is also intellectually dishonest to suggest that the only way to show that there was police coercion is to show a "no" and then a "yes". Coercion can be established many different ways.

> I'm sorry if I come off as harsh, I certainly don't intend that.

Wrt CCE, this is also a rounding down of the argument. DPR will be facing separate charges in a separate case for the hitman, will he not? The hitman bit was brought up as an anecdote to support the CCE charge and not something that the defense could challenge as entrapment at that time. This is why I bring it up.

By uncharitable I merely mean that you aren't willing to take the actual argument. You have not directly addressed the argument. At this point I am convinced that you are not willing to.

You don't come off as harsh. I would use the word dismissive. I've used the word 'uncharitable'. Maybe 'troll'?

Argument from exhaustion against a straw man.

----------------------------------

Let's go forward from this point.

If the police entered a mall, forced someone at gunpoint to kill another person, could that person then be arrested for murder with no possibility of arguing that they were entrapped?

Suppose that before or during being held at gunpoint, at no point did they tell anyone that "no" they wouldn't kill.

[Natsu]

> The charge of entrapment is separate from the severity of the crime someone is entrapped into or whether the entrapment would be considered a sufficient motive, were it not simulated. It is merely enough that the police coerced the defendant.

Yes, it's separate, but the point was that there are no excuse defenses that cover it, period.

> The blackmail, however, was for a delayed use of force - loss of freedom/liberty - which is tantamount to loss of life, and indeed in this case Ross lost the remainder of his life.

The law recognizes no such equivalence, nor do any of your sources show that. It would be ridiculous for the law to reward you for trying to escape being brought to court, particularly if you thought you had a reason you'd be sent to jail after their examination.

> It would be uncharitable (again) to suggest that it was merely about property. But (again) all one needs to establish entrapment is threat to property.

The threat of going to jail when your crimes are exposed is one made by the court in the first place, so how can it rule that it was somehow wrong to threaten you with punishment or excuse you for trying to have someone killed to avoid answering to the court?

I did support that by pointing out how none of the excuse defenses cover this in general. Hiring a hitman is simply criminal, so you need some reason to say that a law-abiding citizen might think it was okay in this circumstance, which brings us to the excuse defenses. Courts do not entertain hypotheticals, so there's no precedent. If you want to argue that they do, you should instead find a time when someone was excused for hiring a hitman.

> Please stop referring to webcomics as "the" law guide.

Okay, now this is just silly. 'The', as I used it, doesn't mean it's the only guide or the definitive source of all law, it means it's the same one I've been referencing. You can denigrate it as a 'comic', but legal textbooks actually look very much like that comic in written form. They lay out various scenarios and explain how the law plays out. So the main difference is that this one has little illustrations. It still covers the elements of each item and gives examples of how they work.

> All the the defense needs to do is show that there was pressure (coercion).

They have to show that they were not otherwise inclined to commit the crime and that the coercion was sufficient to change their mind (subjective standard) or to change the mind of any law abiding citizen (objective standard). "They're allowed to go after those who would say yes."

You quote that "the defendant has to offer evidence to clear their willing involvement in a crime"

But such evidence has been offered. They show him carefully considering whether to get a hitman and answering "yes" with no evidence of reluctance or refusal, save some worries about how it might impact his business. The fact that he deliberated works against him, too. He could more easily claim that the pressure got to him if he had acted hastily, in a panic. The fact that it was a coldly calculated move will leave people to infer malice.

> DPR will be facing separate charges in a separate case for the hitman, will he not?

Maybe, but he's got a bunch of life sentences right now, so I almost wonder if they will even bother? I don't expect them to play nice here, though. Whatever they choose will be to make sure he's well and thoroughly screwed, given how high profile this is.

As you can see, I have no illusions about them playing nice.

> It is not my responsibility to establish this.

I pointing out that the burden of proof is, legally, on the side of the one claiming entrapment. That's how the law works. If you want to convince me that DPR was entrapped, that's what you have to establish. Any lesser burden does not meet the standard set forth in law and is, for that reason, unconvincing.

> If the police entered a mall, forced someone at gunpoint to kill another person, could that person then be arrested for murder with no possibility of arguing that they were entrapped?

This scenario is in the duress chapter, albeit not by a cop.

The person in that scenario was guilty if they pulled the trigger. They might get it reduced to a lesser offense like manslaughter, but they wouldn't be excused. The person, cop or otherwise, holding a literal gun to their head would also be arrested.

No such scenario is on offer here, though. The loss of freedom resulting from blackmail over exposing one's crimes would be caused by the court itself. And the court is going to trust the court's own judgement (how could it not?) over the contents of the blackmail. As it will believe that it would fairly judge a law-abiding citizen (for whom the blackmail would be false), it has every reason to infer by that very fact that those who would hire a killer to escape the court's own scrutiny are up to no good.

Moreover, a court does not consider its own threat to jail you in the event it judges you to have broken the law to be equivalent to losing your life. So you cannot draw a hasty equivalence between being jailed and being killed and try to use the duress rules for losing your life. The duress rules don't even excuse you for killing someone when there's an immediate threat to your life, so why would they excuse something less than that? Now, the self-defense rules can excuse you for protecting yourself, but they require an immediate threat (among other things), and yet DPR had time to write about this in his diary, as I have quoted up thread.

If I'm dismissive, it's because I cannot find a case for him to make here, based on law. But this is nothing. Actual lawyers are positively savage in how they destroy weak arguments.

So I do not expect his lawyers to argue this in court, though this is the sort of argument I might expect if he went pro se and tried his own hand at arguing with the court. He might do that just to grand-stand, but it wouldn't buy him anything but press coverage.

I expect that he will appeal somehow, and his lawyers will likely cite some evidentiary grounds, or similar procedural matters (e.g. "the trial court improperly allowed this evidence because...").

I expect him to lose the appeal. If he tries to appeal to the Supreme Court, I expect that will end with them denying his petition for a writ of certiorari.

You, and anyone else still reading this, can determine the relative quality of our expectations by comparing what we have written is likely to happen to what actually happens. There should be some mismatch for both of us, of course--nobody has a crystal ball--but the distance between our expectations and reality is likely the most objective way to make an assessment.

I think perhaps that would be better than continuing further. Feel free to make your own predictions.

[xnull2guest]

Erg, you still don't cover whether the mall situation would be considered entrapment (it would).

I need to point out one final time that you have not engaged with any of the actual arguments that have been made herein, though you are quick to suggest that the arguments are weak or otherwise round your engagement with a strawman as representative of aspiration to the quality of working attorneys.

You are a mighty troll. A very good one sir.

I will stop feeding you now.

I give up. You win by argument from exhaustion.

[themeek]

Specifically you did not reply to this: https://news.ycombinator.com/item?id=9628225

Is it (A), (B), or (C) that is incorrect?

It sounds like you are saying that (C) is incorrect. However you are confusing how this is shown in court - what needs to be established - from the principle and definition of coercion.

Law enforcement did not charge him for the hitman so the defense did not need to put up a case for entrapment, and as far as I can tell the legal defense dropped the ball a number of places. So it is not enough to point at the defense and backwards reason that if there were entrapment that it would have been established. There was no opportunity. There will be a separate hearing on the use of law enforcement coercion and we may see an argument and evidence presented there.

Neither of us would be willing or able to establish a full defense of DPR or a full case for law enforcement - suggesting that this is my responsibility is intellectually dishonest.

Take any number of resources:

http://www.pdxcriminallawyers.com/articles/entrapment-and-po...

"What Is Entrapment?

When it comes to police coercion, a defendant is assumed to have the responsibility to turn down an opportunity to commit a crime when posed by a law enforcement officer. Instead, a defendant will need to prove that the law enforcement officer took additional actions to force a person into an illegal act. The following may be considered sufficient actions to force a person into committing a crime they otherwise wouldn’t:

- Fraudulent claims or promises

- Depending on the specifics, verbal harassment or flattery

- Threats against a person, their property, or their job

If a defendant wants to cite entrapment, they have a duty to present proof of entrapment. As it is what is known as an affirmative defense, the defendant has to offer evidence to clear their willing involvement in a crime."

http://www.grayarea.com/entrap.htm

"So, a defendant cannot be exonerated of a crime on an entrapment claim even if he or she can prove that police had no reason whatsoever to suspect even the slightest of criminal inclinations. What they must prove is that were induced by police to commit the crime. This leads us to the second of the four questions: What constitutes inducement?

An officer merely approaching a defendant and requesting that they commit a crime does not. To claim inducement, a defendant must prove he or she was unduly persuaded, threatened, coerced, harassed or offered pleas based on sympathy or friendship by police. A defendant must demonstrate that the government conduct created a situation in which an otherwise law-abiding citizen would commit an offense."

Yes, what you are arguing against is a straw man. Quite simply you are not charitably interpreting the situation whereby law enforcement created a situation in which DPR had an incentive to hire a hitman as entrapment. It is the simulation of blackmail, fraud and threats to DPR's business that constitute coercion.

Merely suggesting that there be a hitman is not coercion. But simulating blackmail, defrauding him and threatening his business constitute coercion.

This is what we're talking about and you have repeatedly been ignoring.

Because you are arguing merely in the context of "they offered a hitman and he agreed" you are arguing against a weakened form of my argument.

My argument, in full, charitable form, can be seen in the second reference quoted.

"An officer merely approaching a defendant and requesting that they commit a crime does not. To claim inducement, a defendant must prove he or she was unduly persuaded, threatened, coerced, harassed or offered pleas based on sympathy or friendship by police. A defendant must demonstrate that the government conduct created a situation in which an otherwise law-abiding citizen would commit an offense."

An officer did not merely approach DPR and request that he commit a crime.

They simulated blackmail, fraud and threat to property: that is coercive.

Definitions of blackmail includes the word "coercion".

Please, I don't care how long your posts are if you don't bother to address the premises of the argument.

Because you are refusing to address the use of simulated blackmail and fraud to coerce DPR, you are not charitably engaging the argument. You are arguing against a straw man. You are pretending that law enforcement merely chatted with DPR online without setting up coercive pretenses.

Please, for your own sake, be charitable when debating people - either in person or online.