State v. Jung Ho Yi ( 2004 )

MANNHEIMER, Judge,

with whom STEWART, Judge, joins, concurring.

I agree that there was no entrapment here. I write separately to address one aspect of the superior court’s decision.

On page 6 of its written decision, the superior court asserted that Yi was entrapped into committing the offense of bootlegging because, even though people know that the sale of alcohol is illegal in the dry and damp areas of this state, “reasonable people in the State of Alaska, and specifically in Bethel,” would nevertheless mistakenly believe that it remained legal for them to trade alcohol for goods (as opposed to trading alcohol for money).

The superior court made no finding that the trooper misrepresented the legality of such a trade to Yi. Instead, the superior court appears to have adopted the position that any widespread community mistake concerning the law will support a claim of entrapment, even when law enforcement officials do nothing to encourage the defendant to adopt or rely upon this mistaken view of the law.

Alaska has adopted the objective theory of entrapment.¹ Under the objective theory of entrapment, the purpose of the defense is to identify instances in which “the police used dishonorable or unacceptable means” to induce someone to commit a crime, instances in which “police conduct falls below an acceptable standard for the fair and honorable administration of justice”.²

Thus, under AS 11.81.450, entrapment is defined as law enforcement conduct — '“persuasion or inducement” by law enforcement officers or those working in cooperation with them. Under the statute, police-instigated persuasion or inducement constitutes entrapment if it “would be effective to persuade an average person[, who was otherwise not] ready and willing, to commit the offense”.

Here, the superior court appears to have found that Yi and many other members of the Bethel community were indeed “ready and willing” to barter alcohol for goods, with essentially no “persuasion or inducement” other than a simple request or suggestion, because they all shared the same mistaken belief that this conduct was legal. I have no idea whether the superior court’s assertion is true. But even if it is, widespread misunderstanding of the law will not support a defense of entrapment, any more than an individual defendant’s misunderstanding of the law will support a defense of entrapment, when law enforcement officers have done nothing to foster this misunderstanding or to persuade the defendant to rely upon this misunderstanding.

1 . Pascu v. State, 577 P.2d 1064, 1067 (Alaska 1978); Grossman v. State, 457 P.2d 226, 229 (Alaska 1969); Jacobs v. State, 953 P.2d 527, 531 (Alaska App.1998). See also the legislative commentary to AS 11.81.450, found in 1978 Senate Journal, Supp. No. 47 (June 12), p. 138.

2 . Jacobs v. State, 953 P.2d 527, 531 (Alaska App.1998), quoting Pascu v. State, 577 P.2d 1064, 1067 (Alaska 1978).