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70 Mo. L. Rev. 387 (2005)
Sting Operations, Undercover Agents, and Entrapment

handle is hein.journals/molr70 and id is 397 raw text is: Sting Operations, Undercover Agents,
and Entrapment
Bruce Hay*
Charles Nunez reputedly financed his drug habit by making explosives
and selling them to gang members in western Massachusetts.' In August 1995
he was approached by Jose Colon, one of his drug suppliers. Colon said he
wanted some pipe bombs to blow up the Solids, a rival gang. Nunez readily
agreed to make the bombs. Together they went shopping for ingredients, ac-
companied by Colon's friend Frank Montanez. They bought gunpowder and
fuse material at a Connecticut gun store, and picked up hardware at the local
Home Depot.2 En route, Nunez boasted of his previous deals and showed off
his technical knowledge of explosives. Once back home, Nunez made nine
short-fused pipe bombs filled with gunpowder, nails, and screws. [W]hen
you light this, Nunez warned, you better run. It has nails and metal balls. If
you throw it [it] will kill everybody. Colon left with the bombs stuffed in a
duffel bag, paying Nunez $75.
It was all a setup. Nunez was the victim of a sting operation conducted
by undercover police agents. Colon, the drug dealer, was a police informant.
Montanez, the passenger, was an undercover state trooper. The police had
orchestrated the entire transaction. Colon had worn a wire when visiting Nu-
nez; the car had contained a hidden video camera; the police were listening
and lying in wait as the deal closed. Nunez was arrested and charged with
unlawfully possessing and selling the nine pipe bombs. He was sent to prison
for ten years-for a crime staged by the police.
This Article is the first systematic economic analysis of undercover po-
lice sting operations, their role in the legal system, and the courts' use of the
entrapment defense to regulate their use.3 Sting operations, of which the
* Professor of Law, Harvard University. Thanks to John Hay, Phil Heymann,
Louis Kaplow, Steve Shavell, Andrew Song, Jennifer Zacks, and workshop partici-
pants at Harvard for helpful comments. The research was supported by the Olin Cen-
ter for Law, Economics and Business at Harvard.
1. This account is drawn from the United States v. Nunez, 146 F.3d 36, 37 (1st
Cir. 1998), along with the appellate briefs in the case (No. 97-1411).
2. The conviction was sustained on appeal
3. There is an extensive literature on the entrapment defense, but it focuses on
the doctrinal foundations and formulations of the defense, frequently attempting to
sort out the ambiguities in the courts' definition of the defense. For a recent sample of
this literature, which contains citations to work in the area, see Ronald J. Allen et al.,
Clarifying Entrapment, 89 J. CRIM. L. & CRIMINOLOGY, 407 (1999). There is also
extensive literature on the ethical problems raised by sting operations. Probably the

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