One of the arguments that I've been reading and hearing is that Mohamed Mohamud was not entrapped because "he had many chances to walk away." Attorney General Eric Holder seems to have said something similar:
“There were, as I said, a number of opportunities that the subject in this matter, the defendant in this matter, was given to retreat, to take a different path. He chose at every step to continue.”
I'm hesitant to criticize the Attorney General, but if he is indeed saying that the case was not entrapment because Mohamud was allegedly told repeatedly that he could walk away from the bomb plot, then I think he's at best vastly overlooking the importance of the first encounter, and at worst, wrong. In other words, if the government can prove that in the first meeting, Mohamud was already predisposed to engage in terrorism, then the government defeats the entrapment defense. On the other hand, if the government can't prove that Mohamud had the predisposition at the first meeting, then I'm not sure I see how it necessarily wins by showing that he later on didn't walk away.
In Jacobson v. United States (1992), the government spent more than two years trying to get the defendant to put in an order for child pornography. Agents sent him questionnaires and membership applications from fictitious organizations, and child porn catalogs. Eventually, Jacobson gave in and tried to buy two child porn tapes, at which point he was arrested. The Court explained:
By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985.
The period of government attention in Jacobson was much longer than that here, of course, and he did hold out for two years before giving in. But the part of the quote I've emphasized suggests that in this case, the government would have to prove that Mohamud's alleged predisposition to engage in terrorism was independent of the attention that the undercover agents directed at him. Now, there are courts that have interpreted Jacobson as being based on a number of other factors, including the government's appeal to an anti-censorship mindset, and its tailoring of the inducements based on Jacobson's responses.
I suppose the argument would be that, well, he was told he could walk away, so if he chose not to, it shows that he really did want to engage in terrorism all along. But I don't think that works. It's true that these allegations, if proven, would be relevant to Mohamud's state of mind and negate any potential of mistake, lack of intent, and so on. But it would be hard to disentangle the government's interactions with him, because the assumption here is that the government already failed to prove that he had the intent at the first meeting.
Moreover, in Jacobson, the defendant didn't "walk away" for two years so much as he refused to buy child porn. The crime was committed at any instant that he acted. Under the FBI's affidavit here, on the other hand, Mohamud allegedly didn't walk away, but he didn't necessarily commit the crime in the indictment either. That is, depending on how you read 18 U.S.C. 2332a, he might not have violated the statute until he pressed the cellphone button on Nov. 26, 2010. (Or maybe when he parked the van.)
Put another way, in a lot of these sting cases, the government is trying to get the defendant to buy something illegal (drugs, child porn, etc.), and the defendant may be predisposed to do so, but doesn't break the law until he/she tries to buy the contraband. The only actions are buy/don't buy for any given encounter. In Mohamud's case, the action matrix is more complicated because much of what the affidavit lays out is planning for the use of the weapon of mass destruction. But in a sense, one might conclude from Holder's argument that Mohamud wouldn't have committed a crime if he had walked away from the agents on Nov. 26, 2010 without pressing the button. If that's right, then that means that the only important act, from a culpability/entrapment standpoint is whether he presses the button . . . .
On the other hand, if Holder were right that entrapment could not be proven simply because Mohamud had chances to walk away and didn't, then entrapment would never work as a defense, because the defendant always has a choice not to engage in the particular crime. The entrapment defense presupposes that the defendant did engage in the crime or attempted to do so, but is excused because he/she was essentially manipulated by the government into doing so.