Jacobson v. United States (1992)
Jacobson v. United States (1992)
503 U.S. 540
Keith Jacobson was convicted in the U.S. District Court for the District of Nebraska of receiving child pornography through the mail in violation of the Child Protection Act of 1984. He appealed, claiming as he had during his jury trial that he had been entrapped by the federal government into committing the crime through a series of communications from undercover agents that spanned the 26 months preceding his arrest. The Court of Appeals for the Eighth Circuit affirmed his conviction, holding that the federal government had carried its burden of proving beyond a reasonable doubt that Jacobson was predisposed to break the law and hence was not entrapped. The Supreme Court granted certiorari.
Opinion of the Court: White, Blackmun, Stevens, Souter, Thomas.
Dissenting opinion: O’Connor, Rehnquist, Scalia, Kennedy.
JUSTICE WHITE delivered the opinion of the Court.
Because the Government overstepped the line between setting a trap for the “unwary innocent” and the “unwary criminal,” Sherman v. United States (1958), and as a matter of law failed to establish that petitioner was independently predisposed to commit the crime for which he was arrested, we reverse the Court of Appeals’ judgment affirming his conviction.
In February 1984, petitioner, a 56-year-old veteran-turned-farmer who supported his elderly father in Nebraska, ordered two magazines and a brochure from a California adult bookstore. The magazines, entitled Bare Boys I and Bare Boys II, contained photographs of nude preteen and teenage boys. The contents of the magazines startled petitioner, who testified that he had expected to receive photographs of “young men 18 years or older.” . . . The young men depicted in the magazines were not engaged in sexual activity, and petitioner’s receipt of the magazines was legal under both federal and Nebraska law. Within three months, the law with respect to child pornography changed; Congress passed the Act illegalizing the receipt through the mails of sexually explicit depictions of children. In the very month that the new provision became law, postal inspectors found petitioner’s name on the mailing list of the California bookstore that had mailed him Bare Boys I and II. There followed over the next 2½ years, repeated efforts by two Government agencies, through five fictitious organizations and a bogus pen pal, to explore petitioner’s willingness to break the new law by ordering sexually explicit photographs of children through the mail.
The Government began its efforts in January 1985 when a postal inspector sent petitioner a letter supposedly from the American Hedonist Society, which in fact was a fictitious organization. The letter included a membership application and stated the Society’s doctrine: that members had the “right to read what we desire, the right to dis cuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan morality.” For a time, the Government left petitioner alone. But then a new “prohibited mail specialist” in the Postal Service found petitioner’s name in a file, and in May 1986, petitioner received a solicitation from a second fictitious consumer research company, “Midlands Data Research,” seeking a response from those who “believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age.” The letter never explained whether “neophite” referred to minors or young adults. Petitioner responded: “Please feel free to send me more information, I am interested in teenage sexuality. Please keep my name confidential.”
Petitioner then heard from another Government creation, “Heartland Institute for a New Tomorrow” (HINT), which proclaimed that it was “an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process.”
By March 1987, 34 months had passed since the Government obtained petitioner’s name from the mailing list of the California bookstore, and 26 months had passed since the Postal Service had commenced its mailings to petitioner. Although petitioner had responded to surveys and letters, the Government had no evidence that petitioner had ever intentionally possessed or been exposed to child pornography. The Postal Service had not checked petitioner’s mail to determine whether he was receiving questionable mailings from persons—other than the Government—involved in the child pornography industry.
At this point, a second Government agency, the Customs Service, included petitioner in its own child pornography sting, “Operation Borderline,” after receiving his name on lists submitted by the Postal Service. Using the name of a fictitious Canadian company called “Produit Outaouais,” the Customs Service mailed petitioner a brochure advertising photographs of young boys engaged in sex. Petitioner placed an order that was never filled.
The Postal Service also continued its efforts in the Jacobson case, writing to petitioner as the “Far Eastern Trading Company Ltd.” The letter began:
As many of you know, much hysterical nonsense has appeared in the American media concerning “pornography” and what must be done to stop it from coming across your borders. This brief letter does not allow us to give much comments; however, why is your government spending millions of dollars to exercise international censorship while tons of drugs, which makes yours the world’s most crime ridden country are passed through easily.
The letter went on to say:
[W]e have devised a method of getting these to you without prying eyes of U.S. Customs seizing your mail. . . . After consultations with American solicitors, we have been advised that once we have posted our material through your system, it cannot be opened for any inspection without authorization of a judge.
The letter invited petitioner to send for more information. It also asked petitioner to sign an affirmation that he was “not a law enforcement officer or agent of the U.S. Government acting in an undercover capacity for the purpose of entrapping Far Eastern Trading Company, its agents or customers.” Petitioner responded. A catalogue was sent, and petitioner ordered Boys Who Love Boys, a pornographic magazine depicting young boys engaged in various sexual activities. Petitioner was arrested after a controlled delivery of a photocopy of the magazine.
When petitioner was asked at trial why he placed such an order, he explained that the Government had succeeded in piquing his curiosity.
Well, the statement was made of all the trouble and the hysteria over pornography and I wanted to see what the material was. It didn’t describe the—I didn’t know for sure what kind of sexual action they were referring to in the Canadian letter. . . .
In petitioner’s home, the Government found the Bare Boys magazines and materials that the Government had sent to him in the course of its protracted investigation, but no other materials that would indicate that petitioner collected or was actively interested in child pornography.
There can be no dispute about the evils of child pornography or the difficulties that laws and law enforcement have encountered in eliminating it. Likewise, there can be no dispute that the Government may use undercover agents to enforce the law. “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. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States (1932); Sherman v. United States; United States v. Russell (1973).
In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.
That is not what happened here. 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 prosecution’s evidence of predisposition falls into two categories: evidence developed prior to the Postal Service’s mail campaign, and that developed during the course of the investigation. The sole piece of preinvestigation evidence is petitioner’s 1984 order and receipt of the Bare Boys magazines. But this is scant if any proof of petitioner’s predisposition to commit an illegal act, the criminal character of which a defendant is presumed to know. It may indicate a predisposition to view sexually oriented photographs that are responsive to his sexual tastes; but evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition.
Furthermore, petitioner was acting within the law at the time he received these magazines. Receipt through the mails of sexually explicit depictions of children for noncommercial use did not become illegal under federal law until May 1984, and Nebraska had no law that forbade petitioner’s possession of such material until 1988. Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution, but for whatever reason, the law’s prohibitions are matters of consequence. Hence, the fact that petitioner legally ordered and received the Bare Boys magazines does little to further the Government’s burden of proving that petitioner was predisposed to commit a criminal act. This is particularly true given petitioner’s unchallenged testimony was that he did not know until they arrived that the magazines would depict minors.
The prosecution’s evidence gathered during the investigation also fails to carry the Government’s burden.
The strong arguable inference is that, by waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials, the Government not only excited petitioner’s interest in sexually explicit materials banned by law but also exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights. . . .
Petitioner’s ready response to these solicitations cannot be enough to establish beyond reasonable doubt that he was predisposed, prior to the Government acts intended to create predisposition, to commit the crime of receiving child pornography through the mails. The evidence that petitioner was ready and willing to commit the offense came only after the Government had devoted 2½ years to convincing him that he had or should have the right to engage in the very behavior proscribed by law. Rational jurors could not say beyond a reasonable doubt that petitioner possessed the requisite predisposition prior to the Government’s investigation and that it existed independent of the Government’s many and varied approaches to petitioner. As was explained in Sherman, where entrapment was found as a matter of law, “the Government [may not] pla[y] on the weaknesses of an innocent party and beguil[e] him into committing crimes which he otherwise would not have attempted.”
JUSTICE O’CONNOR, with whom the CHIEF JUSTICE and JUSTICE KENNEDY join, and with whom JUSTICE SCALIA joins except as to Part II, dissenting.
Keith Jacobson was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent ever contacted him face-to-face. The Government contends that from the enthusiasm with which Mr. Jacobson responded to the chance to commit a crime, a reasonable jury could permissibly infer beyond a reasonable doubt that he was predisposed to commit the crime. I agree.
The first time the Government sent Mr. Jacobson a catalog of illegal materials, he ordered a set of photographs advertised as picturing “young boys in sex action fun.” He enclosed the following note with his order: “I received your brochure and decided to place an order. If I like your product, I will order more later.” For reasons undisclosed in the record, Mr. Jacobson’s order was never delivered. The second time the Government sent a catalog of illegal materials, Mr. Jacobson ordered a magazine called Boys Who Love Boys, described as “11 year old and 14 year old boys get it on in every way possible. Oral, anal sex and heavy masturbation. If you love boys, you will be delighted with this.” Along with his order, Mr. Jacobson sent the following note: “Will order other items later. I want to be discreet in order to protect you and me.” The Government, the Court holds, failed to provide evidence that Mr. Jacobson’s obvious predisposition at the time of the crime was “independent and not the product of the attention that the Government had directed at petitioner.” In so holding, I believe the Court fails to acknowledge the reasonableness of the jury’s inference from the evidence, redefines “predisposition,” and introduces a new requirement that Government sting operations have a reasonable suspicion of illegal activity before contacting a suspect.
This Court has held previously that a defendant’s predisposition is to be assessed as of the time the Government agent first suggested the crime, not when the Government agent first became involved. Until the Government actually makes a suggestion of criminal conduct, it could not be said to have “implant[ed] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission. . . .” Sorrells v. United States (1932).
Today, the Court holds that Government conduct may be considered to create a predisposition to commit a crime, even before any Government action to induce the commission of the crime. In my view, this holding changes entrapment doctrine. Generally, the inquiry is whether a suspect is predisposed before the Government induces the commission of the crime, not before the Government makes initial contact with him.
The rule that preliminary Government contact can create a predisposition has the potential to be misread by lower courts as well as criminal investigators as requiring that the Government must have sufficient evidence of a defendant’s predisposition before it ever seeks to contact him. Surely the Court cannot intend to impose such a requirement, for it would mean that the Government must have a reasonable suspicion of criminal activity before it begins an investigation, a condition that we have never before imposed. The Court denies that its new rule will affect run-ofthe-mill sting operations, and one hopes that it means what it says. Nonetheless, after this case, every defendant will claim that something the Government agent did before soliciting the crime “created” a predisposition that was not there before. For example, a bribe taker will claim that the description of the amount of money available was so enticing that it implanted a disposition to accept the bribe later offered. A drug buyer will claim that the description of the drug’s purity and effects was so tempting that it created the urge to try it for the first time. In short, the Court’s opinion could be read to prohibit the Government from advertising the seductions of criminal activity as part of its sting operation, for fear of creating a predisposition in its suspects. That limitation would be especially likely to hamper sting operations such as this one, which mimic the advertising done by genuine purveyors of pornography. No doubt the Court would protest that its opinion does not stand for so broad a proposition, but the apparent lack of a principled basis for distinguishing these scenarios exposes a flaw in the more limited rule the Court today adopts.
The Court’s rule is all the more troubling because it does not distinguish between Government conduct that merely highlights the temptation of the crime itself, and Government conduct that threatens, coerces, or leads a suspect to commit a crime in order to fulfill some other obligation. For example, in Sorrells, the Government agent repeatedly asked for illegal liquor, coaxing the defendant to accede on the ground that “one former war buddy would get liquor for another.” In Sherman, the Government agent played on the defendant’s sympathies, pretending to be going through drug withdrawal and begging the defendant to relieve his distress by helping him buy drugs.
The Government conduct in this case is not comparable. While the Court states that the Government “exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights,” one looks at the record in vain for evidence of such “substantial pressure.” The most one finds is letters advocating legislative action to liberalize obscenity laws, letters which could easily be ignored or thrown away. Much later, the Government sent separate mailings of catalogs of illegal materials. Nowhere did the Government suggest that the proceeds of the sale of the illegal materials would be used to support legislative reforms.
The crux of the Court’s concern in this case is that the Government went too far and “abused” the “processes of detection and enforcement” by luring an innocent person to violate the law. Consequently, the Court holds that the Government failed to prove beyond a reasonable doubt that Mr. Jacobson was predisposed to commit the crime. It was, however, the jury’s task, as the conscience of the community, to decide whether or not Mr. Jacobson was a willing participant in the criminal activity here or an innocent dupe. The jury is the traditional “defense against arbitrary law enforcement.” Duncan v. Louisiana (1968). Indeed, in Sorrells, in which the Court was also concerned about overzealous law enforcement, the Court did not decide itself that the Government conduct constituted entrapment, but left the issue to the jury. There is no dispute that the jury in this case was fully and accurately instructed on the law of entrapment, and nonetheless found Mr. Jacobson guilty. Because I believe there was sufficient evidence to uphold the jury’s verdict, I respectfully dissent.