What is the current state of the law in this circuit on entrapment?

In light of all of this, we suggest that it would be preferable for the district courts of this circuit to use an entrapment charge that does not give to the jury two ultimate factual issues to decide on two different burdens of persuasion imposed upon two different parties. While we do not specifically define this preferable charge, we suggest that there be no reference to "burden" or "burden of proof" or "preponderance of evidence" in describing a defendant's obligation. In explaining the burden of proof on entrapment, it will be enough to tell the jury that if it finds some evidence of government initiation of the illegal conduct, the Government has to prove beyond a reasonable doubt that the defendant was ready and willing to commit the crime. The language quoted from United States v. Berger, supra, would obviously be appropriate.

One further comment is necessary. In United States v. Riley, 363 F.2d 955 (2d Cir. 1966), we held that the issue of entrapment need not be submitted to the jury when, even if there is evidence of inducement, there is uncontroverted evidence of the defendant's propensity to commit the crime. Nothing in this opinion is meant to change that rule.