26
UNITED STATES V. MOHAMUD
(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. Id. “Although none of these factors is
controlling, the defendant’s reluctance to engage in the
criminal activity is the most important.” Id.
We can assume that factors (1), (3), and (5) are in
Mohamud’s favor.
The second factor—whether the
government made the initial suggestion of criminal activity—
weighs against Mohamud. Although Youssef discussed with
Mohamud five options of how to be a good Muslim,
including the option to become “operational,” Mohamud—
not Youssef—made the initial suggestion to fill a car with
explosives near a target location. Mohamud also told
Youssef that he wanted to “wage war” within the United
States before Youssef mentioned the possibility of an
“operational” role.
The government can rely upon
Mohamud’s statements to prove predisposition even though
he made them after the initial contact by the government.
United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir.
1998).15 Here, Mohamud discussed placing explosives in
vehicles near target locations after the government’s initial
15
In Tucker, a jury convicted the defendant of extortion and filing
false tax returns. This court affirmed his conviction and sentence, and
rejected his argument that the evidence proved entrapment as a matter of
law. This court considered statements made by the defendant even after
the initial contact between the defendant and the government, noting that
“[t]o prove the defendant’s predisposition, the government can rely upon
evidence occurring after the initial contact with a government agent.”
Tucker, 133 F.3d at 1217.
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