A friend of mine interested in buying a cable descrambler box indicated to me today that he would never do so off eBay because he is certain he’s heard that some of the auctions for these things are actually entrapment scams for the FBI.
WITHOUT starting a Great Debate about whether a cable box is good/ evil, I am interested in whether anyone has any information about whether the FBI sets up entrapment auctions on eBay for cable boxes or other items (i.e. kiddie porn, guns, etc.) I personally think it’s an urban legend.
Well, kiddie porn, guns etc. are not allowed on eBay at all.
It may vary from state to state, but generally cable descramblers are only illegal to use not to buy or sell. I bought one on eBay and the ATF teargas tanks aren’t crashing in yet…
I can see the FBI Director weighing his resource allocation options now. Hmmmm… international terrorists…cable thieves…international terrorists…cable thieves. Cable thieves it is!! Get Sculley on it pronto!
And Hail Ants, check out this part of the first law:
I would construe buying or selling to be distribution with intent of unauthorized reception. I assume it’s tough to prove intent though, especially on Ebay.
The FBI has been involved in several “kiddie porn” stings that involve selling or otherwise distributing prohibited material on the Internet. I don’t recall a specific use of eBay for a sting, but there’s no reason not to use eBay for this purpose.
By the way - the thread title characterizes these as “entrapment;” merely offering illegal material for sale, and then arresting those who buy it, does not constitute entrapment.
there are folks who own their own descramblers to avoid the rental fees from their cable companies. That is perfectly legal, as far as I know. So there wouldn’t be a problem with buying/selling for that purpose.
There was a large sting operation up my way (I think it was in VT, NY and Canada) that ended up in hundreds of people getting stung by the FBI. They had set up a website selling satelite descrambler cards. IIRC, they only charged the people that bought a bunch to re-sell.
Could you explain more, Bricker? My (fuzzy) understanding of this was that if the police offered you an opportunity to commit an illegal act that you otherwise would not/might not have committed, you are entrapped. Obviously I’m wrong, but gimme the nuance.
IANAL, but I once asked a similar question of a lawyer friend. He had just been going over several instances of things which did not constitute entrapment, despite the objection of the defendant. I asked him what would constitute entrapment.
The example he gave me: If the police send you an ad for mail-order kiddie porn and you respond, that’s not entrapment. If they send you the ad and you throw it away, along with the next 10 ads they send you, and then you respond, that is entrapment. At that point, your motivation for responding could be to get these people off your back, or just wariness, or . . . whatever.
I suppose, then, that if the police set up a situation whereby your primary motivation for committing a crime may not be the commission of the crime itself or the benefits direcly associated with it, then that’s entrapment. But hell, I’m not sure, and this stuff must vary from state to state.
The gravamen of entrapment is either that the accused would not have committed the crime but for the undue persuasion or fraud of the government agent, or that the encouragement was such that it created a risk that persons not inclined to commit the crime would commit it.
The mere case of the police offering you the opportunity to commit a crime, using the same method as the actual criminals, does not create entrapment. An ad for illegal materials on eBay is thus not undue persuasion, nor does it create a risk that a person not inclined to commit the crime would commit it, since the government ad is virtually indistinguishable from other, truly criminal, ads like it.
Entrapment is an affirmative defense, which means it’s risky to assert at trial anyway; in order to claim entrapment, you must admit the underlying criminal acts, which estops you from simultaneously claiming innocence.
Intent can always be inferred. You don’t have to have the statement of the manufacturer that the box is intended to let you steal cable. If the thing’s only use is to rip off Time Warner, you’re hosed unless you’ve got a really good excuse.
Not that I think for a second that Louis Freeh and Janet Reno are cruising the auction sites, looking for tightwad couch potatoes.
I think this would constitute entrapment, or at least you could argue that it did with a good lawyer. Take, say, a prostitution sting. The officer posing as a prostitute is NOT allowed to solicit business; if they were to ask a prospective john if they wanted to exchange money for sex, that would be entrapment. They would need to wait for someone to specifically proposition them. If you offer something illegal on ebay with the express purpose of arresting anyone who responds, aren’t you then doing the same? Enticing people to commit a crime that they may not otherwise have committed?
O.k., maybe the FBI is not the right source for enforcement of this sort of thing. I guess the reason my buddy came to this conclusion is that all the cable box places cannot sell in their own state. That is, if you look at their ads, if they are located in Montana, it will have a disclaimer that says ‘no Montana sales’. Hence, the ‘criminal’ device crosses state lines, is a federal crime, and thus falls under the jurisdiction of the FBI.
That, and the fact the FBI sounds like a scarey entity to have after you (as opposed to the hum-drum police) so people naturally invoke their name whenever they can.
Still, I’m sure all the collective cable companies must lose millions to cable theft each year, and that said, it would seemingly be worth their while to set up sting operations and harass people who were otherwise going to rip them off. Even if they have no authority to do anything once they catch you, I’d think they could just scare you by saying something to the effect of “We know who you are and we’re putting you on our list” - kind of like an evil Santa Claus
There are two elements to the affirmative defense of entrapment: Government inducement of the crime, and a lack of predisposition on the defendant’s part to engage in the criminal conduct. Both of these must be present for entrapment to exist. (See, e.g., Sherman v. U.S., 356 U.S. 369, 376-378 (1958); U.S. v. Russell, 411 U.S. 423, 435-436 (1973); Hampton v. U.S., 425 U.S. 484, 489 (1976). Predisposition, “the principal element in the defense of entrapment,” Russell, supra, at 433, focuses upon whether the defendant was an “unwary innocent” or, instead, an “unwary criminal” who readily availed himself of the opportunity to perpetrate the crime. Sherman, supra, at 372; Russell, supra, at 436.
If you have case law or cites to the contrary, please cough them up.
