Author Question: Did Ortega present sufficient evidence to require the trial judge to instruct the jury on ... (Read 33 times)

genevieve1028 · **on:** Aug 17, 2018

Did Ortega present sufficient evidence to require the trial judge to instruct the jury on entrapment?

Jose Reyes Ortega-Gonzalez (Ortega), a Mexican banker, was videotaped at a meeting set up by undercover agents, agreeing to launder money and helping to perfect a money laundering scheme. This was part of Operations Checkmark and Casablanca, the largest undercover money laundering and drug investigations in United States history, aimed at destroying the Colombian Cali and Juarez cocaine cartels. Ortega claims that prior to his money laundering activities, four armed men entered his father's house and threatened him, Ortega's immediate family, and the family of Ortega's wife, and asked about Ortega's willingness and ability to launder money. Ortega reported this incident to his bank's security head, but not to the Mexican police, believing them to be corrupt. Ortega then began to notice a strange car parking outside his residence. He was then contacted by Navarro, a low-level money launderer for the Cali cartel, who invited him to Los Angeles to meet potential investors, who turned out to be Mendoza and several other undercover agents who had gained Navarro's confidence. The men at the meeting requested that Ortega facilitate the money laundering, which he did. Ortega claims that Mendoza made a number of veiled threats and repeatedly alluded to the Cali cartel's well-known reputation for violence. Ortega asserts that he feared for the lives and safety of his family, that he had never been involved in money laundering, and that he became involved only out of fear for himself and
his family.
What will be an ideal response?

Question 2

Was the denial of bail excessive?

Under Massachusetts law, the purpose of setting bail is to reasonably assure the appearance of the person before the court and to ensure that the person will not endanger the safety of any other person or the community. State troopers lawfully entered an apartment to arrest Querubin and another. They fled. The police found twenty-two kilograms of seventy-nine per cent pure cocaine in the apartment with a street value of approximately 2.2 million. Querubin was indicted and captures by border patrol agents at Las Cruces, New Mexico, as he attempted to flee into Mexico. At a bail hearing, Querubin argued the weaknesses in the Commonwealth's case, the lack of any connection between him and the apartment, his lack of a criminal record, and his claimed right to political asylum (his brother had been granted political asylum). The judge ordered that Querubin be detained without bail pending trial.
What will be an ideal response?

bdobbins · **Reply #1 on:** Aug 17, 2018

Answer to Question 1

Yes
Inducement can be any government conduct creating a substantial risk that an otherwise lawabiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. Although Ortega's version of the events is not particularly convincing, a defendant need present only some evidence, which may be of doubtful credibility, to create a factual issue that must be resolved by a jury. A jury could believe Ortega's story; if so, it could conclude that Mendoza's coercive threats constituted inducement because they created a substantial risk that an otherwise law-abiding person would commit a crime. Five factors are relevant to examining predisposition: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government's inducement. Although none of these factors alone controls, the most important is the defendant's reluctance to engage in criminal activity. In this case, accepting Ortega's factual assertions as correct, the third factor weighs against Ortega, while the first, second, and fifth factors probably favor him. The fourth factor at first blush appears to weigh against Ortega; however, as Operation Checkmark itself demonstrates, appearances are sometimes deceiving. Like Kissel (who was acquitted by a jury when she asserted the defense of entrapment), Ortega maintains that his apparent lack of reluctance was caused by his fear of Mendoza and the ruthless individuals for whom Ortega believed he worked. Under these circumstances, the fourth factor must be deemed to favor Ortega, or at worst to be neutral. Ortega has offered a plausible explanation as to why he did not manifest the reluctance he claimed he felt. A criminal defendant who acts out of fear does not forfeit his right to present an entrapment defense simply because he agrees, seemingly without reluctance, to commit a crime. The credibility of the defendant's explanations is a matter for the jury to determine.

Answer to Question 2

No
There is no absolute right to bail; it can be denied in capital cases. The bail statute is not vagueit codifies the well known factors to be considered by a judge exercising inherent common law authority to grant or deny bail. The essential purpose of bail is to secure the presence of a defendant at trial to ensure that, if the defendant is guilty, justice will be served. Further, the ability to secure a defendant's presence at trial is of fundamental importance to the basic functioning of the judiciary, without which justice cannot be properly administered. . . . A judge in the Superior Court has the inherent authority to deny a defendant's motion for admittance to bail where bail will not reasonably assure the defendant's appearance before the court. Deciding whether to withhold bail involves determinations of fact and the exercise of sound, practical judgment, and common sense. In most cases the facts to be determined at a bail hearing are undisputed, a matter of public record, and readily explained which involve the application of factors . . . that are familiar, straightforward, and relatively simple. There was no abuse of discretion by the judge in this case.