criminal-law human-rights constitutional-law process sentencing
Can a cop direct a pharmacist to fill a known fraudulent prescription in order to convict a subject of a higher crime?
<p>If a cop is responding to a <strong>known</strong> fraudulent prescription, ask the pharmacist to stall the subject until they arrive so he can arrest the subject, but, instead of making the arrest for attempt to obtain by fraud, directs the pharmacist to fill the <strong>known</strong> fraudulent prescription in order to arrest the subject for the higher crime of trafficking, is the subject guilty of possession/trafficking?</p>

<p>If the subject is not guilty of possession then the subject can get up to 5 years in prison for an attempt or qualify for drug court:</p>

<blockquote>
  <p>Florida Statutes 893.13 (7)(a)9<br>
  Acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.</p>
</blockquote>

<p>If the subject is guilty of possession, most hydrocodone prescriptions will consist of an aggregate trafficking amount, then the subject is disqualified for drug court and faces an <strong><em>extremely severe penalty</em></strong>:</p>

<blockquote>
  <p>Florida Statutes 893.135 1(c)1c<br>
  Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a <em>mandatory minimum term of imprisonment of 25 years and shall be ordered to pay a fine of $500,000</em>.</p>
</blockquote>

<p>It seems the same as a cop planting drugs on someone to convict them of possession or trafficking. </p>

<p>The circuits all over the place on this one but I don't see these facts fitting according to the strictest rule.</p>

<blockquote>
  <p>It is within the discretion of the police to decide whether delaying
  the arrest of the suspect will help ensnare co-conspirators, as
  exemplified by this case, will give the police greater understanding
  of the nature of the criminal enterprise, <strong>or merely will allow the
  suspect enough "rope to hang himself</strong>."</p>
</blockquote>

<p><em>U.S. V. Garcia</em> 79 F.3d 74 (7th Cir. 1996)</p>

<p>See also  <em>Hoffa v. United States</em> 385 U.S. 293 (1966)</p>

<blockquote>
  <p>A suspect has no constitutional right to be arrested when the police
  have probable cause.</p>
  
  <p>The police are not required to guess, at their peril, the precise
  moment at which they have probable cause to arrest a suspect, risking
  a violation of the Fourth Amendment if they act too soon, and a
  violation of the Sixth Amendment if they wait too long. Law
  enforcement officers are under no constitutional duty to call a halt
  to a criminal investigation the moment they have the minimum evidence
  to establish probable cause, a quantum of evidence which may fall far
  short of the amount necessary to support a criminal conviction.</p>
</blockquote>

<p><strong>EDITING THE ANSWER in light of some comments.</strong></p>

<p>Florida recognizes sentence manipulation and outrageous government conduct as defenses. <em>United States v. Ciszkowski</em>, 492 F.3d 1264, 1270 (11th Cir. 2007) Outrageous government conduct and sentencing factor manipulation focus on the government's behavior. Outrageous government conduct occurs when law enforcement obtains a conviction for conduct <strong>beyond the defendant's predisposition</strong> by employing methods that fail to comport with due process guarantees. Under this standard, the conduct must be so outrageous that it is fundamentally unfair. See <em>United States v. Ofshe</em>, 817 F.2d 1508, 1516 (11th Cir.1987)  </p>

<p>In the Ciszkowski case, the defendant was charged with murder for hire as part of a sting. As part of the sting, the government provided Ciszkowski with the gun. The gun had a silencer, the silencer converted his crime to a more serious offense. Ciszkowski argued that he did not know the gun had a silencer and accused the government of sentence manipulation. He lost. The court tells us that the standard for establishing that the government's conduct is <strong>sufficiently reprehensible</strong> to constitute sentencing factor manipulation is high as gives us some cases where the court declined the finding.</p>

<p>See <em>United States v. Bohannon</em>, 476 F.3d 1246, 1252 (11th Cir.2007 (government's selection of age of "minor" victim for sting operation was not manipulation even though the selected age resulted in enhancement under guideline);</p>

<p><em>United States v. Williams</em>, 456 F.3d 1353, 1370-71 (11th Cir.2006) government's purchase of crack cocaine rather than powder cocaine was not manipulation despite sentencing differential);</p>

<p><em>United States v. Sanchez</em>, 138 F.3d 1410, 1412-13 (11th Cir.1998) (government informant's selection of a fictitious amount of drugs to be stolen by defendants was not manipulation of the quantity)</p>

<p>Now, about this doctor. The reason this is might be troubling is that this doctor might have entrapped the suspect. For example, if the suspect went to the dr and just wanted some aspirin but the dr convinced him to ask for vicodin and pain killers in some excessive amount (I don't know, I do not want to make up facts). This could be entrapment by a citizen acting purely on his own; if this is the case there is no entrapment. See  <em>Worley v. State</em>, 848 So. 2d 491 (Fla. Dist. Ct. App. 2003) </p>

<p>However, when the person making the inducement is acting as an agent of the government, courts may allow an entrapment defense. <strong>The government is responsible for the actions of its agents.</strong> But keep in mind that you still need to establish both elements of entrapment. </p>

<p>Per <em>United States v. Isnadin</em>, No. 12-13474 (Feb. 12, 2014):</p>

<blockquote>
  <p>The entrapment defense involves two separate elements : (1) Government
  inducement of the crime, and (2) lack of predisposition on the part of
  the defendant. The defendant bears an initial burden of production to
  show that the first element, Government inducement, is met. Once the
  defendant makes this initial showing, the burden shifts to the
  Government to prove beyond a reasonable doubt that the <strong>defendant was
  predisposed to commit the crime</strong>.</p>
</blockquote>

<p>For any of these defenses to work, the guy who was filling the prescription can not have been predisposed to commit the crime except for the actions of the government and its agents inducing him.</p>
