Full opinion text
OPINION OF THE COURT SLOVITER, Circuit Judge. On September 16, 1980, after a six-day trial, a jury found defendants Harry P. Jannotti and George X. Schwartz guilty of conspiring to obstruct interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and found Schwartz guilty of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d). At the time of the events charged in the indictment, Schwartz was president of the Philadelphia City Council and Jannotti was the Council’s majority leader. Following the entry of the guilty verdicts, defendants renewed their requests for judgments of acquittal and dismissal of the indictment, on which the trial court had previously reserved decision. On November 26, 1980, the district court entered an order setting aside the verdict of the jury in its entirety, dismissing Count III of the indictment (the Hobbs Act count) for lack of jurisdiction, and granting the motions of defendants for judgment of acquittal. The Government appeals. In his opinion accompanying the order, the trial judge gave four reasons for entry of the judgment of acquittal and dismissal ■of Count III of the indictment. United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1980). He concluded: 1. The evidence at trial did not establish the actual or potential impact upon interstate commerce necessary to sustain federal jurisdiction under the Hobbs Act; 2. The evidence at trial established entrapment as a matter of law; 3. Governmental overreaching amounted to a violation of due process of law; 4. The circumstances relied upon to establish federal jurisdiction were artificially created. Id. at 1205. Our review of the record and applicable law convinces us that in reaching these conclusions the district court erred in its legal analysis and usurped the function of the jury to decide contested issues of fact. We reverse the district court’s order and direct reinstatement of the jury’s verdict. I. SUMMARY OF EVIDENCE An understanding and appreciation of the evidence presented to the jury is essential to consideration of the issues facing us on this appeal. We have therefore undertaken an exposition of some of the highlights of that evidence. The government operation, which has come to be known as ABSCAM, began some time in 1978. The basic nature of the plan was that F.B.I. agents posed as employees of Abdul Enterprises, a fictional multinational corporation whose principal, a fictional Arab Sheik, Yassir Habib of the Arab nation of Abu Dhabi, was represented as interested in investing large amounts of money in this country and in emigrating here. According to the government, the plan was “conceived to create opportunities for illicit conduct by public officials predisposed to political corruption.” Brief for Appellant at 6. From the very beginning the government utilized the services of Melvin Weinberg, accurately characterized by the district court as a “career swindler,” 501 F.Supp. at 1193, who, with F.B.I. agents, “spread the word” that the Sheik was interested in meeting public officials who could facilitate his planned investments. This basic plan evolved into various sub-parts, each with its own cast of participants, which were ultimately the subject of a series of indictments returned by grand juries sitting in various federal districts of the country. Thereafter, a number of local and federal public officials were tried on offenses arising out of their participation. We focus on the facts material to the prosecution of Jannotti and Schwartz in the Eastern District of Pennsylvania. The Philadelphia phase began on January 11,1980 when Weinberg called Howard Criden, a Philadelphia attorney, and told him that the Sheik was “looking to build á hotel” in Philadelphia. Criden, who had previously received money from the F.B.I. agents for arranging introductions to congressmen in connection with another phase of the ABSCAM operation, was told that two representatives of the Sheik would be coming to Philadelphia to begin discussions. Weinberg suggested that they be introduced to Congressman Myers or Lederer, and asked Criden which one would be better. CRIDEN: Well, I got to hear what you want to do first, and . . . you know. WEINBERG: I think they’re looking to build a hotel there. I’m not sure. That’s only what I heard. CRIDEN: Okay. Why don’t you tell him to find out more particulars because I don’t know that either one would help you in that department. We may be able to give you more help to them. WEINBERG: Who do you know there? CRIDEN: Everybody! WEINBERG: Everybody? CRIDEN: Everybody! WEINBERG: All right. I’ll ... I’ll. CRIDEN: Remember. I got a partner who’s a city councilman. A211-12. A week later, on January 18,1980, Criden met with F.B.I. agents Michael Wald and Ernest Haridopolos at the Barclay Hotel in Philadelphia. Wald and Haridopolos used the names Michael Cohen and Ernie Polos in their dealings with defendants throughout these events. That meeting was among the group of meetings at the Barclay recorded on videotape by the F.B.I. Wald told Criden that the Sheik was interested in building a hotel in South Philadelphia, that Wald’s role was to address himself to possible problems such as zoning, condemnations, and variances. A351. Criden stated, “You don’t have any problem. You got you two of the strongest guys” [referring to Myers and Lederer]. Wald responded, “He [Sheik] wants to be assured that municipal government and he can coexist.” Criden asked, “How do you want me to satisfy you,” to which Wald responded, “I’m sure the easiest way for me to deal with someone in municipal government and I can go back .. . Titles impress the man, as you know, from past experience .... If he receives those assurances from someone with a title sounds appropriate, eh, I buy it, he buys it.” A351-53. Wald asked Criden about the municipal setup, including city council. Criden explained that Philadelphia City Council is composed of 12 district councilmen and five at-large councilmen, that his “partner [Johanson is] a district councilman!’, and that the president of city council, Schwartz, “is a powerful guy” who had been “president of city council for maybe now ten, twelve years, already now. Has got power.” Wald responded, “He’s the man.” A354-55. Wald later asked: WALD: Can we deal with Mr. Schwartz. CRIDEN: Oh, sure. WALD: He seems like the type of person we . .. CRIDEN: Oh, sure. WALD: Can I deal with him while I’m here in town? CRIDEN: I don’t know. I gotta get hold of my partner. WALD: Can I deal with your partner? CRIDEN: Oh, sure. A357. After some discussion of timing and the proper “tariff,” Wald asked if he could talk candidly with Johanson. Criden responded that “As far as Johanson is concerned,. you can talk as candidly as you want.” With regard to Schwartz, he stated, “He may want to handle it indirectly.” A367. Wald expressed some concern, stating that under no circumstances would he want to disappoint his employer. CRIDEN: Listen, Mike, I, I read you loud and clear and if I was sitting in that chair, I would feel exactly the same way ok. You have no problems with me. WALD: Ok. How do you want to work this? Eh, do you wantta call me back here concerning .. . CRIDEN: Oh sure. WALD: Mr. Johanson. CRIDEN: I’ll get back to you in the next couple hours. WALD: Alright. CRIDEN: If I can serve him up. A368-69. Wald then asked what the “tariff” would be for Johanson and Schwartz, and Criden replied “[t]wenty-five” for Johanson, A375, and “[ajnother fifty” for Schwartz. A376. Wald demurred at the latter figure, and Criden asked, “You wanta go thirty on this guy?” Wald asked, “will he bite at thirty? ... I mean does that take care of him?” and Criden replied, “Let me try it .... I’ll run it up the flagpole.” A376-77. Finally Criden raised the subject of his fee and asked for and was promised “ten for both of them.” A377. Several hours later, Criden returned with Johanson to the Barclay suite where Wald and Haridopolos waited. Wald again discussed the proposed hotel construction, explained that he wanted to avoid delays due to the need for a variance or a building permit, and received Johanson’s assurances that the inspectors from Licenses and Inspections, the building inspectors, the plumbing inspectors, and the electrical inspectors are “not gonna monkey with you, for a minute because they’re gonna be told not to .. . because the words gonna come down, that this is a vital project.” A421. In discussing the political situation in Philadelphia, and City Council in particular, Johanson boasted that of the 17 councilmen, he and Schwartz was each a “very bright fella”, and “after that there ain’t a brain in the closet.” A415. He spoke of his and Schwartz’ importance, and stated that Schwartz, Jannotti and he “run the City Council.” A450. Wald then asked about Jannotti: WALD: Would he be interested in doing business with us. JOHANSON: I don’t know that it’s necessary but if you want to we can. WALD: I don’t know — if it is — you’re the best judge of that. JOHANSON: I think George is ah— CRIDEN: Well, it might not be a bad idea to bring Harry up. JOHANSON: We can bring Harry up. Harry’s the Majority Leader. He’s the— ya know, second in command. WALD: Yea. JOHANSON: He’s got seniority. A453-54. After some additional discussion, the following exchange took place: HARIDOPOLOS: Are you acquainted with how much ah, ya know, ah for the favor and for all these assur — assurances, right. CRIDEN: Right. HARIDOPOLOS: You know how much it is? JOHANSON: Sure. HARIDOPOLOS: How much is it? JOHANSON: Twenty-five. HARIDOPOLOS: Okay, ah but, of course, ah, we have to have these proper assurances. You do us a favor, we’re doin you a favor.. CRIDEN: Obviously. JOHANSON: Sure. A471. Johanson gave his assurances and received $25,000. A480. The following exchange took place: WALD: And for 25 we’ve got a friend. JOHANSON: Right. A477. The conversation turned to Schwartz: WALD: Can I talk to Mr. Schwartz as I have spoken— JOHANSON: Next week— WALD: —to you gentlemen— WALD: [Fjrankly ... CRIDEN: If you can’t have the same discussion with George, . .. you won’t have the meeting. A485. Wald asked the same question about Jannotti. Criden promised to let him know whether he could have the same kind of conversation with Jannotti. A490. After Johanson left, Haridopolos gave Criden $5,000 and promised another “five for the next delivery.” A501. Criden, who did not know Schwartz personally, arranged for Schwartz to meet the F.B.I. agents through an intermediary, Judge Thomas Shiomos of the Court of Common Pleas of Philadelphia County, who lived in the same apartment hotel as Schwartz. Shiomos testified at trial that at a meeting on January 21, 1980 between him, Criden and their mutual friend, Mr. Kattleman, Criden told him of the proposed hotel construction, asked him if Schwartz would be interested in talking to “these people ... for the purpose of giving them his advice with regard to building this complex in Philadelphia,” and indicated that the investors were willing to “pay for [Schwartz’] advice.” A639-40. Shiomos thereafter met with Schwartz, advised him that Criden had wealthy Arab clients who wanted to invest $150 million to build a hotel in Philadelphia, and indicated to Schwartz that Criden had said there “would be a fee for Mr. Schwartz for his advice” and “that Mr. Criden expected part of that fee.” A643. Schwartz stated that he “would be interested in anyone who is willing to invest $150 million.” Shiomos stated when he left that he didn’t think there was anything “improper” but that if Schwartz “thought there was anything improper or fishy [Shiomos was] sure if [Schwartz] met with Mr. Criden that [Schwartz] could determine that.” A644. Thereafter Criden spoke with Schwartz. That discussion was not taped or recorded, and there was no trial evidence as to the contents of the conversation. On January 23, 1980, Criden and Schwartz visited Wald at the Barclay suite. This conversation was videotaped. Criden stated that he and Schwartz had “spoken at length” and that Schwartz knew that those persons whom Wald represented were “interested in building a hotel facility in Philadelphia that may amount to some 30 or 40 million dollars.” A689. Wald explained his purpose: WALD: Well, what I have been instructed to do and the purpose for ah my visits to to Philadelphia is to firm up uh, what we consider to be a major investment here and uh the gentleman cares to make a major investment here because he seems to like Philadelphia, and he has been told that it would uh be in his best interest to have an investment, uh, in an area where he, uh, would like to take up rather permanent residence and Philadelphia is it. SCHWARTZ: Philadelphia is a nice city. Philadelphia has been on the move since 1952. And, uh, business climate in Philadelphia is good. A690. Wald continued: WALD: Uh, and we want to put one up. Now we know that there are problems inherent in any major construction, uh, in this city and any other city. What I am trying to do is take care of any potential problems long before they exist. We’re not breaking ground tomorrow morning. We can forsee certain problems such as, uh, uh, zoning and variances and this type of thing . .. municipal government, how it effects those various things, but we don’t want to be faced with problems down the road. A691-92. Schwartz responded to this overture with a soliloquy on his own political power and importance. After explaining how close he was to the mayor and that he was “sort of a protege” of the mayor’s deceased father, who had been Chairman of the [Democratic] party, Schwartz stated: SCHWARTZ: ... Unfortunately then he died in ’63. And I have been close to every chairman since. I am a member of the Democratic National Committee. I am a member of the State Committee. I am a member of the City Committee. A Ward Leader. I, uh, I have a ward — if you know what that means in politics. A693. A few minutes later, Wald asked: WALD: Is it fair to say that by doing business with you, uh ... my zoning problems become ... SCHWARTZ: Right. CRIDEN: You, you don’t have any. WALD: Okay. Now. There are what, 17 members, as, as you say . . . and also what uh I read here .. . SCHWARTZ: Right. WALD: Uh, do we have a uh controlling vote ... SCHWARTZ: Yes. WALD: .. . problem here? SCHWARTZ: No .. . WALD: Uh. SCHWARTZ: No. WALD: Can you control . . . WALD: . . . those types of factions? SCHWARTZ: Yes. WALD: You can control them? SCHWARTZ: The proof was today. The proof was the election of myself as president again. WALD: Uh hmm. SCHWARTZ: In other words, we got uh five or six now [sic] members that came in. Uh, you tell me your birth date. I’ll give them to you for your birthday. A695-6. The essence of Schwartz’ representations of control was repeated shortly thereafter: WALD: All right. You’re controlling the council at this point. SCHWARTZ: Right. WALD: As far as I’m concerned. SCHWARTZ: Right. CRIDEN: Right. And has been for SCHWARTZ: Right. Right. WALD: Should we have anything that comes up to a vote, that has to be done on a vote basis, the council is with you. SCHWARTZ: Yes. WALD: You control them at this point. SCHWARTZ: Yes. Yes. Yes. CRIDEN: 100 percent. SCHWARTZ: Yes. A709. Schwartz stated that although he could not promise that the hotel project would not have problems, those problems would not be “insurmountable” as long as the project “is a proper project.” A698. Wald stated, “I am not putting up a cat-house”, Criden interjected, “It’s going to be legitimate”, and Schwartz responded, “That I take for granted, or I wouldn’t be here.” A710. Wald then asked Schwartz for assurances of his support if the project “violates some minor . .. type statute or ordinance or . . . something”, and Schwartz replied: SCHWARTZ: There is a Board of Building Standards. There, there is built-in relief every stage of the way. There’s a Zoning Board of Adjustment for variances. WALD: Okay. Can you control that? SCHWARTZ: Yes .... A711. Immediately thereafter he explained, “if it isn’t something that is outlandish, if it is something that should and can be handled, and I can, I can’t think of anything that couldn’t be handled . .. [tjhrough a variance procedure of some kind.” A712. Wald stated: WALD: Okay. Meaning that, if City Council has to vote on it, we don’t have a problem at this point? SCHWARTZ: Well, I’m going further. There are other boards and agencies, uh, depending upon what your client, how idiosyncrant he wants to be and how eccentric he wants to be. WALD: (Laughter) .. . They can become rather eccentric. SCHWARTZ: All right. All right. It may be necessary to go to these various boards and commissions. Now, they are part of the organization. They are part and parcel and ... WALD: Appointed, appointed officials? SCHWARTZ: Yes, they are appointed officials. Uh, but uh, as I say, uh, I always do my homework. And, uh, the mayor is a very strong mayor. We have a strong mayor form of government. And all these people are his appointees. My understanding with him is that I go to him — period. I don’t even have to go to one of the flunkies, one of the functionaries. I go to him .... A712-13. After additional discussion which concerned local law firms that could be employed by the hotel project, the economic climate in Philadelphia, and the encouragement received by business from the city, Wald referred to Schwartz’ compensation: WALD: Our time frame is growing short, but we don’t have those type of problems. We don’t have that built-in resentment. Ah ... We’ve talked to Howard, you know, the figures, the dollars we’re talking are in the right ballpark. We’re ... SCHWARTZ: That’s not my prime concern. I’m interested in the City of Philadelphia. I’m interested in a good project. I’m interested in tax rateables. I want to see Center City develop. Especially Center City. There are a few parcels left. Well anything else that’s going to add to the tax rateables of the city that’s going to create jobs. WALD: I am again quick to say that I’m not really interested in the City of Philadelphia to be candid. SCHWARTZ: Well I have to be. I have to be. WALD: Perhaps, oh sure .. . (inaudible) . . . CRIDEN: Your primary concern is to see that if your employer decides to move, you have a minimum amount of problems. WALD: Exactly .... Problems are to be handled before they arise. Right. Should any minor problems come up. Should any problems that are councilmatic in scope . .. SCHWARTZ: No problem. WALD: You could take care of them. Those are the type of things ... SCHWARTZ: Right. WALD: That he asks I make an unequivocal, yes, it’s been handled, it’s been taken care of and uh ... CRIDEN: You make that an unequivocable yes. SCHWARTZ: It’s ... I would say to you that it’s much easier now than it is than it was four years ago. A746-47. The conversation returned to the nature of the understanding: SCHWARTZ: There are administrative escape hatches for everything in the City of Philadelphia under our various codes. There’s a way of doing it — administrative way of doing it. WALD: Okay, and that is the type of thing you can handle for us. SCHWARTZ: Oh yeah, right. WALD: I can go back and say I met a gentleman. We had a business deal uh, I’ve made a friend in Philadelphia. SCHWARTZ: Yes. WALD: And things are taken care of SCHWARTZ: Right ... WALD: Okay, and the sums appropriate and we’re in good shape. Okay. A753-54. Shortly thereafter as seen on the videotape, Wald opened his briefcase and, without discussion of the amount, handed Schwartz an envelope [containing $30,000 cash], which Schwartz placed in his jacket without counting. The nature of the commitment Schwartz made was reiterated: WALD: The legislative problems we ve taken care of? CRIDEN: No problem. WALD: Okay, that I can, that I, that I got assurance on. SCHWARTZ: Right. CRIDEN: You have, you have no problem. WALD: Okay, the other things can be done through attorneys, but the legislative problems don’t exist anymore? CRIDEN: That’s right. SCHWARTZ: No. Do not. WALD: Okay. A756. Criden remained behind and received his $5,000 fee for arranging the meeting. A758. He admitted to Wald that he had to give “something” to someone to make the approach to Schwartz. A763. Wald indicated an interest in talking to Jannotti if he was “amenable” because both Criden and Johanson had referred to Jannotti “as a power.” A770. Criden undertook to ascertain to “try to do something” with Jannotti and “if the answer is no, I’m going to tell you right off the bat, forget it.” A778. They discussed the amount of the payment to Jannotti, Wald asking “Will he run with five” and Criden replying “Maybe ten . .. [L]et me run it up the flag pole with him.” A779-80. Wald asked whether he should deal with anybody else on the executive , side and was told that there was no one else he could or should do business with. Criden promised to communicate with Wald the next day and departed. The next evening, January 24, 1980, following telephone arrangements, Jannotti and Criden arrived at the Barclay suite to meet with Wald and Haridopolos. Jannotti had been briefed by Criden and Schwartz earlier that day who had “explained the whole situation.” A848. With Jannotti, as with Schwartz, Wald explained “I’m only here for one reason, to bring back some assurances.” A849. He continued: WALD: [W]e are prepared to make a major investment in this city, alright, and, ah, we have incredible funding but it’s still a major investment even for the people that I represent at this time. Ah, it’s not a drop in the bucket even for them. It’s a fair amount of money and ah, the way these people do business, is somewhat different than the way we do business in this country, they don’t think. They just can’t tolerate nor can they put up with psychologically any problems that arise. Now these type of problems do arise but they can be handled, but the type of problems that would get back to my employer. Ahe, he can’t deal with them, and he turns to me and says I thought we had all this settled in Philadelphia. So, that’s why I’m here, simply to take care of any problems now. JANNOTTI: Far in advance. WALD: Ah, it’s really not that far I don’t think. CRIDEN: Well ... WALD: But at least enough in advance that ah when the time comes it’s over and done with everything is nice. Ah, those problems are simply the ones that I can forsee and you haven’t come up with anymore than you and I had been worried about nor has the other gentleman I dealt with, and that would be ah, ah, the zoning, any variances that we have to obtain any, ah, committee type things we’d would have to, ah, deal with, with City Council ah, inspections, licensing the whole gamut, ya know the whole thing, well you were in that type of business in, in an allied situation and I’m sure you can appreciate the petty things that arise, ah, that have to be handled. JANNOTTI: First of all you, you’re going to invest a substantial amount of money and, ah, what you’ll be doing is bringing into the City of Philadelphia a substantial amount of money, and this will create jobs, will create a tax base and ah from what I gather everything that you want to do with be strictly, ah, on board. I mean there’s nothing phony about it. WALD: It’s a legitimate operation. JANNOTTI: As long as it’s, long as it’s a legitimate, legitimate operation. Ya know, any legitimate operation we will fight for because, ah, ya know why shouldn’t we fight for a legitimate operation? If the operation is legitimate, it’s going to bring a tax base into the City of Philadelphia, it’s going to bring employment into the City of Philadelphia, ah, this is, this is basically our job, ah George George’s job and my job, ah, to try to get as much money into the City of Philadelphia and as many jobs into the City of Philadelphia as we possibly can. A849-51. Wald asked: WALD: [B]y dealing with you here this evening and, and the gentleman I, I spoke with last evening, can I go back with those assurances? JANNOTTI: I don’t see why not, as you say, ya know it’s a legitimate project and you have your financing, there’s nothing ah, there’s nothing that you’re doing illegal . . . CRIDEN: Michael wants to be sure that he has a friend if he has a problem. JANNOTTI: Oh certainly. WALD: If something arises, if something arises that needs a City Council vote to be very specific, a City Council vote is needed on the thing, can I count on your vote? JANNOTTI: Why sure .... first of all we’ll go over it again, you have a legitimate project, ah, you’re going to invest 36 million dollars in the City of Philadelphia, which is going to create a tax base and going to create employment. WALD: Right, but. JANNOTTI: But ya, but. HARIDOPOLIS: A lot of legitimate, ah, things get bogged down, we don’t want to be bogged down. JANNOTTI: No, I can’t see this being bogged down. A853-54. Wald explained his position: WALD: Let me give you a short insight into the Arab mind, that its ah, it’s at times difficult to understand now, ah, I can appreciate it because I’ve had both worlds and I can relate, ah, you know, you folks are here, right, they, they think differently, they deal differently, their psychological process are alien to the way I understand exactly what you’re saying. Ok. I’m coming up with something that’s going to help the City of Philadelphia. Ah, it would help, as it would help any city. Ah, he does not look on it that way. They do business, differently. They pay the freight up front. They make friends, right, and then when there, there is a potential problem then I don’t mean, I don’t mean a problem that would necessarily close down construction and throw the project out of Philadelphia. A855-56. Wald and Jannotti discussed City Council politics, and Jannotti affirmed Criden’s statement that Council “never had a vote on an issue that George and Harry wanted passed that they’d lost in the last two years.” A859. They then discussed the payment to Jannotti: WALD: But, you were here at the time. You convinced me right off the bat that we were in the right city and we would have no problems. CRIDEN: You will have no problems. WALD: And I would just as soon save the money, but I can’t go back. CRIDEN: I understand, we had that discussion. WALD: (Pointing to Criden) Did he, was he very graphic with ya? JANNOTTI: Yes. WALD: On exactly how ... JANNOTTI: (Nodding yes) He was always up front, up front. WALD: Ok and . . . CRIDEN: To the bottom line, you know me Michael, I, I don’t we, we both do everything right up front. WALD: Ok and, alright, then I’m going to be, then I’m going to be up front with ya. I’m. CRIDEN: Exactly. WALD: Ah, you’ve been in business all your life, you’ve as you said, you got an education 20 years behind the bar, I was sent to Philadelphia to pay for certain things because that is the psychology and that is the method of business that these people are use to, and that is how they conduct business, they conduct with everybody they do. That’s why I’m here. I understand their psychology, I’ve been involved with them long enough, ah to make it a major part of my life, a majority of my life. JANNOTTI: Well, you know ah, just just on the basics, of what you said and what they want to do, it’s enough for me to get on the floor and argue. I don’t have to, even care what else they want to come up with. My basic point is, the fact that, ah what’s coming in here, and this has been our job, to bring as much business and and, and ah tax base and employment to the City of Philadelphia. If that’s the way they want to do business, that’s all right too. A859-61. Wald asked again for “assurances”: WALD: Can I go back, ah ah, to my employer, the Sheik and tell him that I dealt with a man, on Wednesday night tell him who he is, dealt with you, Thursday night, explain who you were, what your position is and say he and I conducted a cash business transaction and he guaranteed me, we don’t have a problem in Philadelphia. We ah, ah City Councils on our side the man has the influence with the Finance Committee, he has influence ... JANNOTTI: You wouldn’t, you wouldn’t be able to say we don’t have a problem. Problems might arise, but problems ah, you might say problems can be solved. WALD: Ok, you can handle those problems we presume. JANNOTTI: I don’t see why not if it’s a legitimate, if it’s a if it’s a legitimate if it’s a, if it’s a legitimate enterprise, it’s a legitimate piece of business. WALD: By making friends with you this evening, if we have to go to City Council and say look, ya know, give us a break, right, got us some legislation that this is ok. That it’s in the right neighborhood, that the time. CRIDEN: If you want a street for example let’s say changed from a two way to a one way ok, maybe that will help you. WALD: Ok. CRIDEN: Handle your traffic pattern. JANNOTTI: We handle that everyday. WALD: But I go back and I’ll say we have this, and I’ll use that as an example that if we have a one way street situation and it’s just hurting the front, of, of the place we cannot move people in and out of the hotel limousines to private vehicles and what have you, ah the men I dealt with said they will help. I’m not saying that you could walk in there and change this thing tomorrow, but. CRIDEN: Yet. JANNOTTI: We’ll go in there and battle, we’ll go in and battle. WALD: You’re with us? JANNOTTI: Certainly, we’ll go in and battle. A863-67. Wald then took an envelope from his briefcase [containing $10,000 cash], handed it to Jannotti, and asked if “that amount is sufficient.” Jannotti took the envelope, answering, “We’ve discussed it.” HARIDOPOLIS: You know how much it is? CRIDEN: Tell him, you can tell him. HARIDOPOLIS: How much is it? CRIDEN: Tell him? JANNOTTI: We won’t even discuss it. WALD: Ok, but you did discuss it with Howard? JANNOTTI: We won’t even discuss it. HARIDOPOLIS: Is this arrangement please, pleasing to you? JANNOTTI: As I say, we won’t even discuss it. WALD: Ok, well, we’ve done our business. A884-85. Jannotti departed, and Criden promised to see him downstairs. II. HOBBS ACT CONSPIRACY In its opinion granting the motions for acquittal the district court noted that the “evidence permitted, although it did not compel, the inference that the payments represented bribes paid in exchange for the defendants’ assurances of using their official positions to pave the way for expeditious completion of the project.” 501 F.Supp. at 1184. The court, however, dismissed Count III of the indictment, the Hobbs Act conspiracy count, for two reasons. The first dealt with the fictitious nature of the scheme. Although the court was willing to assume that the “evidence permitted the jury to conclude that, if the project had in fact been a genuine project, it would have required the movement of articles in interstate commerce, and that the payment of these bribes would have affected such commerce by depleting the funds available for carrying out the project,” the court focused on the fact that “there never was any such planned project. The Arabs, their plans, and their money were all entirely fictitious.” Id. The court concluded: While the jurisdictional reach of the Hobbs Act is undoubtedly extensive, touching conduct having only minimal or potential impact upon commerce (broadly defined), it does not operate to confer federal jurisdiction over purely hypothetical potential impacts on commerce which could never occur. Id. at 1185. The district court thus fashioned a requirement that conviction for conspiracy to violate the Hobbs Act requires an actual potential effect on interstate commerce. The second jurisdictional defect, according to the district court, stemmed from its view that the Hobbs Act does not cover the “passive acceptance of gratuities by public officials.” Id. The district court, after noting that defendants did not request payment and “made it very clear that the payments would not be necessary”, found that the convictions would represent “a substantial stretching of the definition of extortion.” Id. A. Effect on Interstate Commerce The broad language of the Hobbs Act, covering anyone who “in any way or degree . . . affects commerce ... by ... extortion or attempts or conspires so to do ... ”, 18 U.S.C. § 1951, demonstrates Congress’ intent to free interstate commerce from burdens of any kind caused by extortion. The Supreme Court has expressly recognized that the statute manifests a congressional purpose “to use all the constitutional power Congress has to punish interference with interstate commerce . .. . ” Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). Accord, e.g., United States v. Cerilli, 603 F.2d 415, 423 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980). See also United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978); United States v. Green, 350 U.S. 415, 420-21, 76 S.Ct. 522, 100 L.Ed. 494 (1956). In United States v. Staszeuk, 517 F.2d 53, 58 (7th Cir.) (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975), the court concluded that “the purpose of the Hobbs Act parallels the central purpose of the Commerce Clause itself.” Thus, the decision of the district court in this case has application beyond the Hobbs Act because the extent of Congress’ power under the commerce clause is implicated, and, if its analysis is accepted, will have ramifications for all federal criminal statutes enacted under Congress’ commerce clause power. We begin the analysis of Congress’ power to regulate interstate commerce with the now-accepted principle that the commerce clause reaches, inter alia, activities affecting interstate commerce. Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). However, application of a federal criminal statute is not limited to those cases in which an actual interstate effect is shown. Instead, as the Court recognized in Perez v. United States, 402 U.S. at 152-53, 91 S.Ct. at 1360-61, it is enough that the conduct falls within the “class of activities” within the reach of federal power. Schwartz and Jannotti were convicted of a conspiracy to violate the Hobbs Act, rather than of a substantive violation of the Hobbs Act. A substantive violation of the Hobbs Act generally is supported by proof of an actual effect on commerce. See, e.g., United States v. Mazzei, 521 F.2d 639, 642 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975). But see United States v. Staszeuk, 517 F.2d 53, 59-60 (7th Cir.) (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975) (actual effect need not be shown; “realistic probability” of effect is sufficient). Defendants argue that it follows that a prosecution for conspiracy to violate the Hobbs Act also requires proof “that commerce must have been affected.” Brief for Appellee Jannotti at 22. In so arguing, defendants overlook the significant distinction between a conviction for a substantive offense and a conviction for a conspiracy to commit the substantive offense. This distinction was recognized by the district court at an early stage of the litigation when it dismissed the substantive Hobbs Act counts of the indictment on the ground that there was no possibility that the bribe payments could actually have affected commerce, but left standing the conspiracy count on the possibility that federal jurisdiction could be grounded on proof that the conspiracy, if completed, would affect commerce. See 501 F.Supp. at 1184. The subsequent dismissal of Count III of the indictment was apparently grounded on the district court’s changed view of the law that an actual potential effect was required, even for a conspiracy conviction. We believe the district court’s earlier view was the correct one. Because an agreement between two or more persons to commit criminal acts poses, in and of itself, a serious danger to social order, it is proscribed by the law of conspiracy. See Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). The ultimate failure of the conspiracy may diminish, but does not eliminate, the threat it poses to social order; therefore, the illegality of the agreement does not depend on the achievement of its ends. See generally United States v. Shoup, 608 F.2d 950, 957 n.13 (3d Cir. 1979); United States v. Bobo, 586 F.2d 355, 371 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979). It is similarly irrelevant that the ends of the conspiracy were from the very inception of the agreement objectively unattainable. United States v. Waldron, 590 F.2d 33 (1st Cir.), cert. denied, 441 U.S. 934, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979) (conviction for conspiracy to transport stolen goods in excess of $5,000 affirmed, even though, unknown to defendants, property transported was worth less than $5,000); United States v. Thompson, 493 F.2d 305 (9th Cir.), cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974) (defendant can be convicted of conspiracy to smuggle marijuana even though substance was not shown to be marijuana). In this case the defendants agreed to do acts which, had they been attainable, would have affected commerce. At that point, regardless of whether an actual effect on commerce was “reasonably probable,” a sufficient federal interest was implicated to support federal jurisdiction over that agreement. The Hobbs Act, by its own terms, encompasses the inchoate offenses of attempt and conspiracy to extort. Convictions for these offenses have been sustained notwithstanding the absence of any evidence of an actual effect on interstate commerce. In United States v. Rosa, 560 F.2d 149, 153 (3d Cir.) (en banc), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977), a case in which there was no effect on commerce because the “victim” refused to pay the extortion demand, we stated that a defendant may be convicted under the Hobbs Act for an “attempted extortion which would, if the act were completed, have the effect of obstructing commerce.” See also United States v. Bellomini, 454 F.Supp. 44, 47 (W.D.Pa.1978) (“The fact that the business enterprise was frustrated at a later date through failure of finances does not constitute a defense to a charge of attempt to extort money in violation of the Hobbs Act.”). Similarly, in United States v. Caci, 401 F.2d 664 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), the Second Circuit sustained the conviction of defendants for conspiracy to rob an armored car messenger in violation of the Hobbs Act although the plan was aborted. Counsel for defendants conceded at oral argument that they could point to no precedent to support their contention that a conviction for conspiracy to violate the Hobbs Act must be predicated on a showing of an actual or probable future effect on interstate commerce. One of the few cases to focus on the interstate commerce aspect of the Hobbs Act, United States v. Staszcuk, 517 F.2d 53 (7th Cir.) (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975), arose when a local alderman was convicted of a substantive Hobbs Act violation. The government had proven that he received $3,000 and that he did not oppose a zoning change which authorized the construction of an animal hospital. Because no such hospital was ever built, the court noted that “there is no evidence that either the zoning change or the payment had any effect whatsoever, either favorable or unfavorable, on interstate commerce.” Id. at 55. Judge, now Justice, Stevens, writing for a majority of the en banc court, considered whether the federal statute reached extortion under those circumstances, and concluded: “We are . . . persuaded that the cases which uniformly hold that a threatened effect on interstate commerce is sufficient to bring the statute into play notwithstanding the absence of any actual effect, correctly interpret the congressional purpose.” Id. at 59 (emphasis added). We believe Justice Stevens’ approach is dispositive of the jurisdictional issue before us. Congress can constitutionally reach inchoate offenses because these offenses pose a potential threat to interstate commerce; the existence of such a threat ties “the proscribed conduct to the area of federal concern delineated by the statute.” United States v. Feola, 420 U.S. 671, 695, 95 S.Ct. 1255, 1269, 43 L.Ed.2d 541 (1975). The appropriate inquiry then is not whether the defendants’ perceptions can invest the courts with federal jurisdiction, as the district court viewed the issue, but whether the defendants’ conduct constituted a sufficient threat to interstate commerce so as to implicate an “area of federal concern” sufficient to give rise to federal jurisdiction. In essence the defendants are arguing that we should accept an impossibility defense when federal jurisdiction is predicat-, ed on interstate commerce. We believe such a defense must be rejected here. In substantive Hobbs Act convictions, the requisite nexus to interstate commerce has been found in the depletion of assets theory, because the payment of an extortion demand may reduce the assets available for the purchase of goods originating in other states. See, e.g., United States v. Cerilii, 603 F.2d 415, 424 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980); United States v. Addonizio, 451 F.2d 49, 77 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). In United States v. Rindone, 631 F.2d 491 (7th Cir. 1980), the Hobbs Act conviction of a municipal inspector who had extorted money in exchange for work permits was challenged on the ground that there was no nexus with interstate commerce under the depletion of assets theory because the Federal Bureau of Investigation had supplied the money used in the extortionate transaction. In rejecting this claim, the court reviewed Hobbs Act cases which upheld jurisdiction although no depletion of assets affecting interstate commerce had or could take place and affirmed the “federal interest in deterring even futile threats to interstate commerce”, 631 F.2d at 493, referring to United States v. Staszcuk, 517 F.2d at 57. The Rindone court concluded: As the court noted in [United States v. Brooklier, 459 F.Supp. 476 (C.D.Cal. 1978) ], “[tjhis extortion completed a plan that would have actually affected commerce but for a fact unknown to defendants, i.e., that [the victim] was a company not actually engaged in commerce.” Id. at 478. The presence here of a fact not known to Rindone, i.e., that the FBI provided the payoff money, is likewise irrelevant to the jurisdictional inquiry. 631 F.2d at 494. In the Brooklier case, relied upon by the Seventh Circuit, the victim corporation was an F.B.I.-created shell that in fact had no interstate dealings. Jurisdiction under the Hobbs Act was nonetheless upheld. In construing other federal statutes, the courts also have expressed an unwillingness to accept impossibility as precluding jurisdiction. In United States v. Rose, 590 F.2d 232 (7th Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979), two defendants who had agreed to burglarize a home in Arizona and to transport the stolen goods to Illinois, unwittingly engaged F.B.I. agents to perform the theft and to transport the goods. The agents never intended to commit the thefts and no goods were ever stolen; instead the defendants were arrested and convicted of conspiracy to transport goods interstate knowing the goods to be stolen. Although the issue of federal jurisdiction was not expressly raised, the court, in affirming the convictions under 18. U.S.C. §§ 371, 2314, commented: Here [defendants] intended to cause the goods to be stolen and then transported in interstate commerce with knowledge that they had been stolen. All that was necessary, in addition to an overt act, was that the intended future conduct they had agreed upon include all the elements of the substantive crime. 590 F.2d at 235. This statement reflects the court’s view that the defendants’ plan to transport the goods interstate, even though unattainable from the outset, sufficiently impinged on ah area of federal concern to justify federal regulation and prohibition. See also Craven v. United States, 22 F.2d 605, 609 (1st Cir. 1927), cert. denied, 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739 (1928) (conviction for conspiracy to import foreign liquor without payment of tariff can be sustained based on defendants’ erroneous beliefs that liquor was of foreign origin). Defendants have argued that the holding in United States v. Feola, 420 U.S. at 695-96, 95 S.Ct. at 1269-70, supports their view that an essential jurisdictional element cannot be established by reference solely to the state of mind of the defendant. Feola provides no support for the defendants’ theory. In Feola, even though the defendants did not intend to assault a federal officer, the Court held that they could be still convicted for conspiring to violate the federal statute, 18 U.S.C. § 111, which prohibits an assault on a federal officer. In holding that there was a “sufficient threat” to an “area of federal concern” to meet the federal jurisdictional requirement as long as a federal officer was in fact the target of the planned attack, 420 U.S. at 695, 95 S.Ct. at 1269, the Court did not preclude the existence of federal jurisdiction where the intended victim is believed to be a federal officer, but in fact is not. In fact, the language in the Feola opinion and the approach taken by the Court there support our final reason for rejecting the district court’s holding that an actual potential effect on interstate commerce is a jurisdictional prerequisite for a conviction for conspiracy to violate the Hobbs Act. Defendants have been able to offer this court no policy reason for us to accept their restrictive view of Congress’ constitutional power to legislate as to conspiracies which pose a threat to interstate commerce. Defendants agree that had the government moved from the verbal ruse that its agents were in the hotel construction business to the more concrete action of embarking on that venture; see United States v. Gambino, 566 F.2d 414 (2d Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978), the jurisdictional requirement would have been met. However, we see no reason to interpret Congress’ legislative power as dependent upon whether the F.B.I. agents actually contract for a hotel site, purchase machinery to dump garbage, or establish their own fencing operation for the purchase of stolen goods. To require that the government take that additional step before it can constitutionally reach a proven conspiracy which would have affected interstate commerce had the facts been as represented misdirects the focus of the conspiracy cases. As the Court noted in Feola, “[T]he law of conspiracy serves ends different from, and complementary to, those served by criminal prohibitions of the substantive offense.” 420 U.S. at 693, 95 S.Ct. at 1267. The Court identified the dual purposes of conspiracy law, “protection of society from the dangers of concerted criminal activity,” and sanctions against those agreements which pose great likelihood of commission of an act due to well formed criminal intent. Id. at 693-94, 95 S.Ct. at 1267-68. In this case the jury found that the defendants conspired to violate the Hobbs Act by their acceptance of payments in return for their promises to expedite completion of an elaborate hotel project which, had it been constructed, would have entailed at least a $30 million expenditure. Had the project actually been planned as represented, defendants’ actions would have violated the Hobbs Act even if unforeseen difficulties, such as the overthrow of the “sheik”, prevented any further action on the project. The federal interest in protecting interstate commerce is no less under the factual situation presented in this case. The threat posed by defendants’ actions is just as great. Since Congress has exercised the full scope of its commerce power in the Hobbs Act, we conclude that there was Hobbs Act jurisdiction. B. Extortion “Under Color of Official Right” As an additional ground for dismissing the Hobbs Act count the district court held that defendants’ conduct did not constitute “extortion” under the Act because they, at most, “passive[lyj” accepted the bribes. 501 F.Supp. at 1185. The Act defines “extortion” as: the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951(b)(2). The district court’s holding is inconsistent with the rationale underlying the holdings of this court that the Act is disjunctive and proscribes the “obtaining of property from another .. . under color of official right,” without proof of coercion by the defendant. United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972). We reaffirmed this principle in United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d. 385 (1975), where we stated: A violation of the statute may be made out by showing that a public official through the wrongful use of office obtains property not due him or his office, even though his acts are not accompanied by the use of “force, violence or fear.” Id. at 645 (citations omitted). In Mazzei, we observed that “the ‘under color of official right’ language [of the Hobbs Act] ‘repeats the common law definition of extortion.’ ” Id. (citation omitted). At common law, extortion was defined as “any officer’s unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him.” 4 W. Blackstone, Commentaries *141. The requirement that the money be taken “by color of his office” meant “simply that the officer must have taken money not due him for the performance of his official duties.” State v. Weleck, 10 N.J. 355, 372, 91 A.2d 751, 759 (1952). Thus, “[i]f the [Hobbs] Act is read in full, the distinction between bribery and extortion becomes unnecessary where public officials are involved.” Stern, Prosecutions of Local Political Corruption Under the Hobbs Act: The Unnecessary Distinction Between Bribery and Extortion, 3 Seton Hall L.Rev. 1,14 (1971). More recently, in United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980), we upheld the conviction of state officials who received bribes in return for conferring valuable state contracts, and approved the district court’s charge that extortion under “[c]olor of official right is defined as the taking by a public official of money not due him or his office. ... ” The holding in our cases that the Hobbs Act covers the acceptance of bribes by public officials even when payment was not obtained by force, threats, or use of fear, and the further suggestion that there need be no inducement or prior request for such payments, accords with the view taken by other courts of appeals. In United States v. Hedman, 630 F.2d 1184 (7th Cir. 1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981), the government proved at trial that defendants, city building inspectors, accepted money from builders who failed to conform with the building code, but no solicitation of the bribes was shown. In rejecting defendants’ argument that the government must show that the officials were the “initiators” or “inducers” of the alleged payments, the court stated: It is settled law in this Circuit as well as others that in a Hobbs Act prosecution for extortion under color of official right it is unnecessary to show that the defendant induced the extortionate payment .... The Government is merely required to prove that a public official obtained money to which he was not entitled and which he obtained only because of his official position. Id. at 1195 (footnote omitted). The Sixth Circuit has also held that the “technical overdrawn distinction” which the public officials sought to make there between bribery and extortion under the Hobbs Act is not in keeping with the legislative intent, and that “in cases of misuse of official power, bribery and extortion are not mutually exclusive.” United States v. Butler, 618 F.2d 411, 417 (6th Cir. 1980), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980) and 449 U.S. 1089, 101 S.Ct. 881, 66 L.Ed.2d 816 (1981). Defendants argue that in each of the cases in which this court seemed to interpret the Hobbs Act to cover passive acceptance of a bribe by a public official, the defendant had in fact engaged in some conduct which could be construed as inducement of the payment. Even if the Hobbs Act were to be construed as requiring some inducement on the part of the public official, defendants’ conduct in this case hardly constituted merely passive acceptance of the payments. The evidence does not fit the defendants’ posited illustration of an unexpected bribe mailed to a public official’s office. On the contrary, rather than remaining in their own offices, the evidence shows that each defendant arrived at the Barclay suite after having been briefed about the purported hotel project, the fact that there would be a payment made, and the specific amount of the payment which would be made to each. Although there is no verbatim record of Criden’s earlier conversation with Schwartz, Criden reported to Wald that he told Jannotti before the January 24th meeting that the hotel builders wished assurances that there would be no municipally imposed obstacles to the project, and that the builders were willing to pay for such assurances. A897. As soon as each defendant was in the Barclay suite, Wald, the F.B.I. agent, promptly repeated the need for such assurances. Thereafter, Schwartz launched into a discourse on his own importance and power and his ability to control City Council and the relevant municipal officials and departments, A69296, 709-13, see pages 585-586 supra, and Jannotti also confirmed his own power. A858-59, see page 588 supra. Further, each gave assurances that there would be no obstacles or that the obstacles, if any, would be manageable. Thus, each defendant’s appearance at the Barclay in expectation of a payment and his conduct in providing such assurances evidences more than mere “passive” acceptance of the bribes, and falls within the Hobbs Act definition of extortion under color of official right. Accordingly we hold that the district court erred in dismissing Count III of the indictment. III. ENTRAPMENT As Justice Harlan noted, the meaning, purpose, and application of the defense of entrapment in criminal cases are problems that have sharply divided the Court. See Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963). See also United States v. Russell, 411 U.S. 423, 439-40, 93 S.Ct. 1637, 1646-47, 36 L.Ed.2d 366 (Stewart, J., dissenting) (1973). To a large extent, that division has centered on whether the controlling standard focuses on the conduct of the government (the objective test) or the predisposition of the defendant (the subjective test). The legal principles which determine the application of the entrapment defense in this case, however, are not in serious dispute. The parameters of the entrapment defense are largely to be found from the four principal cases in which the defense has been considered by the Supreme Court, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); and Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). In Sorrells v. United States, where the Court first recognized the defense of entrapment, the Court held the defendant was entitled to have the jury consider whether his acts of possessing and selling one-half gallon of whiskey in violation of thé National Prohibition Act were instigated by the prohibition agent who implanted in the “mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that [Government officials] may prosecute.” 287 U.S. at 442, 53 S.Ct. at 212. The nature of the defense was outlined more fully when the Court next considered the defense a quarter of a century later in Sherman v. United States. Chief Justice Warren, writing for the majority of the Court, stated that “[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” 356 U.S. at 372, 78 S.Ct. at 820. In concluding that entrapment had been established as a matter of law, the Court determined from the undisputed testimony of the prosecution’s witnesses that the defendant was induced to sell narcotics by the government informer and that he was not predisposed, i.e., that he engaged in conduct he would not otherwise have attempted. The Court noted, “Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials.” Id. (emphasis in original). In United States v. Russell, the Court expressly disapproved of the decisions of the lower federal courts which had expanded the entrapment defense beyond the Court’s opinions in Sorrells and Sherman. Instead, the Court reiterated that the defense was not of constitutional dimension, and reaffirmed its prior opinions that established that entrapment is a “relatively limited defense”, 411 U.S. at 435, 93 S.Ct. at 1644, which cannot be used by a predisposed defendant. Most recently, in Hampton v. United States, a majority of the Court, in two separate opinions, upheld defendant’s conviction arising from his sales of heroin which had allegedly been procured from a government informant, reaffirming once again the unavailability of the entrapment defense to a predisposed defendant. Emerging from these cases are the principles which guide our review of the evidence which defendants argue and the district court found established entrapment as a matter of law. As the Court stated in Sorrells, “It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.” 287 U.S. at 441, 53 S.Ct. at 212. Entrapment occurs when a defendant who was not predisposed to commit the crime does so as a result of the government’s inducement. The entrapment defense thus focuses on “the intent or predisposition of the defendant to commit the crime.” United States v. Russell, 411 U.S. at 429, 93 S.Ct. at 1641. As we have previously held, the government has the burden “to disprove the whole [entrapment] defense beyond a reasonable doubt,” United States v. Watson, 489 F.2d 504, 510 (3d Cir. 1973). Finally, although there may be instances where the undisputed facts establish the entrapment defense as a matter of law, as in United States v. Sherman, or where the evidence is simply insufficient to submit the issue to the jury, see, e.g., United States v. Armocida, 515 F.2d 49, 55-56 (3d Cir. 1975); United States v. Payseur, 501 F.2d 966, 970-71 (9th Cir. 1974); United States v. Smith, 489 F.2d 1330, 1334-35 (7th Cir. 1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2407, 40 L.Ed.2d 773 (1974), entrapment is generally a jury question. See United States v. Lentz, 624 F.2d 1280, 1286 (5th Cir. 1980), cert. denied, 450 U.S. 995, 101 S.Ct. 1696, 68 L.Ed.2d 194 (1981); United States v. Bocr