The problem may be better illustrated in considering when ease of access does cut against an entrapment defense. Consider the government agent attempting to make a controlled buy of cocaine or some other illegal drug. If the targeted individual already has the cocaine, that demonstrates unlawful conduct in possessing the drug at all and suggests a predisposition to traffic. After all, the target had to acquire the cocaine in the first place. Similarly, if the target disclaims present possession of cocaine but touts knowledge of how to readily get some, that suggests past conduct indicative of a disposition to trade in the drug. So those circumstances would tend to cloud a defense of entrapment.In addition, the district court failed to give a pattern instruction regarding the burden of proof with regard to affirmative defenses. In combination, the COA held that the instructional deficiencies constituted clear error and required reversal.
But the same inferences cannot be logically or legally drawn from a target's possession of oxycodone obtained with a valid prescription. There is nothing unlawful about filling a valid prescription at a pharmacy. So ease of access in that circumstance is not indicative of a predisposition to engage in illegal drug trafficking. The district court, therefore, erred by instructing the jury otherwise. In this case, the pattern jury instruction should have been tailored to remove that factor. Although district courts should avoid gratuitous rewrites of pattern jury instructions, those instructions can and should be edited to reflect legal principles appropriate to the evidence in a given case.
[Update: the state did not file a PR and the mandate issued on October 29, 2015.]