OCTOBER TERM, 1991
Syllabus
JACOBSON
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 90-1124. Argued November 6, 1991-Decided April 6, 1992
At a time when federal law permitted such conduct, petitioner
Jacobson ordered and received from a bookstore two Bare Boys
magazines containing photographs of nude preteen and teenage boys.
Subsequently, the Child Protection Act of 1984 made illegal the
receipt through the mails of sexually explicit depictions of
children. After finding J acobson's name on the bookstore mailing
list, two Government agencies sent mail to him through five
fictitious organizations and a bogus pen pal, to explore his
willingness to break the law. Many of those organizations
represented that they were founded to protect and promote sexual
freedom and freedom of choice and that they promoted lobbying
efforts through catalog sales. Some mailings raised the spectre of
censorship. Jacobson responded to some of the correspondence. After
21/2 years on the Government mailing list, Jacobson was solicited
to order child pornography. He answered a letter that described
concern about child pornography as hysterical nonsense and decried
international censorship, and then received a catalog and ordered a
magazine depicting young boys engaged in sexual activities. He was
arrested after a controlled delivery of a photocopy of the
magazine, but a search of his house revealed no materials other
than those sent by the Government and the Bare Boys magazines. At
his jury trial, he pleaded entrapment and testified that he had
been curious to know the type of sexual actions to which the last
letter referred and that he had been shocked by the Bare Boys
magazines because he had not expected to receive photographs of
minors. He was convicted, and the Court of Appeals affirmed.
Held: The prosecution failed, as a matter of law, to
adduce evidence to support the jury verdict that Jacobson was
predisposed, independent of the Government's acts and beyond a
reasonable doubt, to violate the law by receiving child pornography
through the mails. In their zeal to enforce the law, 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.
Sorrells v.
United States, 287 U. S. 435, 442.
Jacobson was not simply offered the opportunity to order
pornography, after which he promptly availed himself of that
opportunity. He was the target of 26 months of repeated Government
mailings and communications,
541
and the Government has failed to carry its burden of proving
predisposition independent of its attention. The preinvestigation
evidencethe Bare Boys magazines-merely indicates a generic
inclination to act within a broad range, not all of which is
criminal. Furthermore, J acobson was acting within the law when he
received the magazines, and he testified that he did not know that
they would depict minors. As for the evidence gathered during the
investigation, Jacobson's responses to the many communications
prior to the criminal act were at most indicative of certain
personal inclinations and would not support the inference that
Jacobson was predisposed to violate the Child Protection Act. On
the other hand, 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
Jacobson's interest in material banned by law but also exerted
substantial pressure on him to obtain and read such material as
part of the fight against censorship and the infringement of
individual rights. Thus, rational jurors could not find beyond a
reasonable doubt that Jacobson possessed the requisite
predisposition before the Government's investigation and that it
existed independent of the Government's many and varied approaches
to him. Pp. 548-554.
916 F.2d
467, reversed.
WHITE, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, SOUTER, and THOMAS, JJ., joined. O'CONNOR, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY,
J., joined, and in which SCALIA, J., joined except as to Part II,
post, p. 554.
George H. Moyer, Jr., argued the cause and filed briefs
for petitioner.
Paul
J. Larkin, Jr., argued the cause for the United
States. With him on the brief were Solicitor General Starr,
Assistant Attorney General Mueller, Deputy Solicitor General
Bryson, and Vicki S. Marani.
*
* Bennett L. Gershman, Steven R. Shapiro, and
John A. Powell filed a brief for the American Civil
Liberties Union et al. as
amici curiae urging reversal.
Gregory U. Evans, Daniel B. Hales, George D. Webster, Jack E.
Yelverton, Fred E. Inbau, Wayne W Schmidt, Bernard
J.
Farber, and James P.
542
JUSTICE WHITE delivered the opinion of the Court.
On September 24, 1987, petitioner Keith Jacobson was indicted
for violating a provision of the Child Protection Act of 1984
(Act), Pub. L. 98-292, 98 Stat. 204, which criminalizes the knowing
receipt through the mails of a "visual depiction [that] involves
the use of a minor engaging in sexually explicit conduct .... " 18
U. S. C. § 2252(a)(2)(A). Petitioner defended on the ground that
the Government entrapped him into committing the crime through a
series of communications from undercover agents that spanned the 26
months preceding his arrest. Petitioner was found guilty after a
jury trial. The Court of Appeals affirmed his conviction, holding
that the Government had carried its burden of proving beyond
reasonable doubt that petitioner was predisposed to break the law
and hence was not entrapped.
Because the Government overstepped the line between setting a
trap for the "unwary innocent" and the "unwary criminal,"
Sherman v.
United States, 356 U. S. 369, 372
(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.
I
In February 1984, petitioner, a 56-year-old veteranturned-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
Manak filed a brief for Americans for Effective Law
Enforcement, Inc., et al. as
amici curiae urging
affirmance.
Briefs of
amici curiae were filed for the National Center
for Missing and Exploited Children et al. by
H. Robert
Showers and
Judith Drazen Schretter; and for Congressman
Thomas J. Bliley, Jr., et al. by
James P. Mueller, Michael
J. Lockerby, and
David E. Anderson.
543
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." Tr. 425. On cross-examination, he explained
his response to the magazines:
"[PROSECUTOR]: [Y]ou were shocked and surprised that there were
pictures of very young boys without clothes on, is that
correct?
"[JACOBSON]: Yes, I was.
"[PROSECUTOR]: Were you offended?
"[JACOBSON]: I was not offended because I thought these were a
nudist type publication. Many of the pictures were out in a rural
or outdoor setting. There was-I didn't draw any sexual connotation
or connection with that." Id., at 463.
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 21/2 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
544
"right to read what we desire, the right to discuss 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." Record, Government Exhibit 7.
Petitioner enrolled in the organization and returned a sexual
attitude questionnaire that asked him to rank on a scale of one to
four his enjoyment of various sexual materials, with one being
"really enjoy," two being "enjoy," three being "somewhat enjoy,"
and four being "do not enjoy." Petitioner ranked the entry
"[p]re-teen sex" as a two, but indicated that he was opposed to
pedophilia.
Ibid.
For a time, the Government left petitioner alone. But then a new
"prohibited mailing specialist" in the Postal Service found
petitioner's name in a file, Tr. 328-331, 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." Record, Government Exhibit 8. 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."
Ibid.
Petitioner then heard from yet another Government creation,
"Heartland Institute for aNew 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."
Id.,
Defendant's Exhibit 102. The letter also enclosed a second survey.
Petitioner indicated that his interest in "[p]reteen
sex-homosexual" material was above average, but not high. In
response to another question, petitioner wrote: "Not only sexual
expression but freedom of the press is under attack. We must be
ever vigilant
545
to counter attack right wing fundamentalists who are determined
to curtail our freedoms."
Id., Government Exhibit 9.
HINT replied, portraying itself as a lobbying organization
seeking to repeal "all statutes which regulate sexual activities,
except those laws which deal with violent behavior, such as rape.
HINT is also lobbying to eliminate any legal definition of 'the age
of consent.'''
Id., Defendant's Exhibit 113. These lobbying
efforts were to be funded by sales from a catalog to be published
in the future "offering the sale of various items which we believe
you will find to be both interesting and stimulating."
Ibid.
HINT also provided computer matching of group members with similar
survey responses; and, although petitioner was supplied with a list
of potential "pen pals," he did not initiate any
correspondence.
Nevertheless, the Government's "prohibited mailing specialist"
began writing to petitioner, using the pseudonym "Carl Long." The
letters employed a tactic known as "mirroring," which the inspector
described as "refiect[ing] whatever the interests are of the person
we are writing to." Tr. 342. Petitioner responded at first,
indicating that his interest was primarily in "male-male items."
Record, Government Exhibit 9A. Inspector "Long" wrote back:
"My interests too are primarily male-male items.
Are you satisfied with the type of VCR tapes available?
Personally, I like the amateur stuff better if its [sic]
well produced as it can get more kinky and also seems more real. I
think the actors enjoy it more." Id., Government Exhibit
13.
Petitioner responded:
"As far as my likes are concerned, I like good looking young
guys (in their late teens and early 20's) doing their thing
together." Id., Government Exhibit 14.
Petitioner's letters to "Long" made no reference to child
pornography. After writing two letters, petitioner discontinued the
correspondence.
546
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. Tr. 348.
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.
Id., at 71-72. Using the name of a
fictitious Canadian company called "Produit Outaouais," the Customs
Service mailed petitioner a brochure advertising photographs of
young boys engaging in sex. Record, Government Exhibit 22.
Petitioner placed an order that was never filled.
Id.,
Government Exhibit 24.
The Postal Service also continued its efforts in the J acobson
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." Id., Government
Exhibit 1.
The letter went on to say:
"[WJe have devised a method of getting these to you without
prying eyes of U. S. Customs seizing your
547
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." Ibid.
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.
Ibid. A catalog was sent,
id., Government Exhibit 2,
and petitioner ordered Boys Who Love Boys,
id., Government
Exhibit 3, 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." Tr.
427-428.
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.
Petitioner was indicted for violating 18 U. S. C. § 2252(a)
(2)(A). The trial court instructed the jury on the petitioner's
entrapment defense,1 petitioner was convicted, and a di-
1 The jury was instructed:
"As mentioned, one of the issues in this case is whether the
defendant was entrapped. If the defendant was entrapped he must be
found not
548
vided Court of Appeals for the Eighth Circuit, sitting en bane,
affirmed, concluding that "Jacobson was not entrapped as a matter
of law."
916 F.2d
467, 470 (1990). We granted certiorari. 499 U. S. 974
(1991).
II
There can be no dispute about the evils of child pornography or
the difficulties that laws and law enforcement have encountered in
eliminating it. See generally
Osborne v.
Ohio,
495 U. S. 103,
110 (1990);
New York v.
Ferber, 458 U. S. 747, 759-760
(1982). 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, 287 U. S. 435, 441
(1932);
Sherman, 356 U. S., at 372;
United States v.
Russell, 411
U. S. 423, 435-436 (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.
Sorrells, supra, at 442;
Sherman, supra, at 372.
Where the Government has induced an
guilty. The government has the burden of proving beyond a
reasonable doubt that the defendant was not entrapped.
"If the defendant before contact with law-enforcement officers
or their agents did not have any intent or disposition to commit
the crime charged and was induced or persuaded by law-enforcement
officers o[r] their agents to commit that crime, then he was
entrapped. On the other hand, if the defendant before contact with
law-enforcement officers or their agents did have an intent or
disposition to commit the crime charged, then he was not entrapped
even though law-enforcement officers or their agents provided a
favorable opportunity to commit the crime or made committing the
crime easier or even participated in acts essential to the crime."
App. 11-12.
549
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.
United States v.
Whoie, 288 U. S. App.
Thus, an agent deployed to stop the traffic in illegal drugs may
offer the opportunity to buy or sell drugs and, if the offer is
accepted, make an arrest on the spot or later. In
2 Inducement is not at issue in this case. The Government does
not dispute that it induced petitioner to commit the crime. The
sole issue is whether the Government carried its burden of proving
that petitioner was predisposed to violate the law
before
the Government intervened. The dissent is mistaken in claiming that
this is an innovation in entrapment law and in suggesting that the
Government's conduct prior to the moment of solicitation is
irrelevant. See
post, at 556-557. The Court rejected these
arguments six decades ago in
Sorrells v.
United
States, 287 U. S.
435 (1932), when the Court wrote that the Government may not
punish an individual "for an alleged offense which is the product
of the creative activity of its own officials" and that in such a
case the Government "is in no position to object to evidence of the
activities of its representatives in relation to the accused .... "
Id., at 451. Indeed, the proposition that the accused must
be predisposed prior to contact with law enforcement officers is so
firmly established that the Government conceded the point at oral
argument, submitting that the evidence it developed during the
course of its investigation was probative because it indicated
petitioner's state of mind
prior to the commencement of the
Government's investigation. See Tr. of Oral Arg. 41, 49.
This long-established standard in no way encroaches upon
Government investigatory activities. Indeed, the Government's
internal guidelines for undercover operations provide that an
inducement to commit a crime should not be offered unless:
"(a) [T]here is a reasonable indication, based on information
developed through informants or other means, that the subject is
engaging, has engaged, or is likely to engage in illegal activity
of a similar type;
or
"(b) The opportunity for illegal activity has been structured so
that there is reason for believing that persons drawn to the
opportunity, or brought to it, are predisposed to engage in the
contemplated illegal activity." Attorney General's Guidelines on
FBI Undercover Operations (Dec. 31, 1980), reprinted in S. Rep. No.
97-682, p. 551 (1982).
550
such a typical case, or in a more elaborate "sting" operation
involving government-sponsored fencing where the defendant is
simply provided with the opportunity to commit a crime, the
entrapment defense is of little use because the ready commission of
the criminal act amply demonstrates the defendant's predisposition.
See
United States v.
Sherman, 200
F.2d 880, 882 (CA2 1952). Had the agents in this case simply
offered petitioner the opportunity to order child pornography
through the mails, and petitioner-who must be presumed to know the
law-had promptly availed himself of this criminal opportunity, it
is unlikely that his entrapment defense would have warranted a jury
instruction.
Mathews v.
United States, 485 U. S. 58, 66
(1988).
But 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.
Sorrells, supra, at 442;
Sherman, 356 U. S., at
372.
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.
551
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. Neb. Rev. Stat. § 28813.01 (1989). 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 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. Petitioner's responses
to the many communications prior to the ultimate criminal act were
at most indicative of certain personal inclinations, including a
predisposition to view photographs of preteen sex and a willingness
to promote a given agenda by supporting lobbying organizations.
Even so, petitioner's responses hardly support an inference that he
would commit the crime of receiving child pornography through the
mails.3 Furthermore, a person's inclinations and "fantasies ...
are
3We do not hold, as the dissent suggests, see
post, at
559-560, that the Government was required to prove that petitioner
knowingly violated the law. We simply conclude that proof that
petitioner engaged in legal conduct and possessed certain
generalized personal inclinations is not sufficient evidence to
prove beyond a reasonable doubt that he would have been predisposed
to commit the crime charged independent of the Government's
coaxing.
552
his own and beyond the reach of government .... "
Paris Adult
Theatre I v.
Slaton, 413 U. S. 49, 67 (1973);
Stanley v.
Georgia, 394 U. S. 557, 565-566
(1969).
On the other hand, 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. For instance,
HINT described itself as "an organization founded to protect and
promote sexual freedom and freedom of choice" and stated that "the
most appropriate means to accomplish [its] objectives is to promote
honest dialogue among concerned individuals and to continue its
lobbying efforts with State Legislators." Record, Defendant's
Exhibit 113. These lobbying efforts were to be financed through
catalog sales.
Ibid. Mailings from the equally fictitious
American Hedonist Society,
id., Government Exhibit 7, and
the correspondence from the nonexistent Carl Long,
id.,
Defendant's Exhibit 5, endorsed these themes.
Similarly, the two solicitations in the spring of 1987 raised
the spectre of censorship while suggesting that petitioner ought to
be allowed to do what he had been solicited to do. The mailing from
the Customs Service referred to "the worldwide ban and intense
enforcement on this type of material," observed that "what was
legal and commonplace is now an 'underground' and secretive
service," and emphasized that "[t]his environment forces us to take
extreme measures" to ensure delivery.
Id., Government
Exhibit 22. The Postal Service solicitation described the concern
about child pornography as "hysterical nonsense," decried
"international censorship," and assured petitioner, based on
consultation with "American solicitors," that an order that had
been posted could not be opened for inspection without au-
553
thorization of a judge.
Id., Government Exhibit 1. It
further asked petitioner to affirm that he was not a Government
agent attempting to entrap the mail order company or its customers.
Ibid. In these particulars, both Government solicitations
suggested that receiving this material was something that
petitioner ought to be allowed to do.
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. See
Sherman, 356 U.S., at 374. The
evidence that petitioner was ready and willing to commit the
offense came only after the Government had devoted 21/2 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."
Id., at 376.
Law enforcement officials go too far when they "implant in the
mind of an innocent person the
disposition to commit the
alleged offense and induce its commission in order that they may
prosecute."
Sorrells, 287 U. S., at 442 (emphasis added).
Like the
Sorrells Court, we are "unable to conclude that it
was the intention of the Congress in enacting this statute that its
processes of detection and enforcement should be abused by the
instigation by government officials of an act on the part of
persons otherwise innocent in order to lure them to its commission
and to punish them."
Id., at 448. When the Government's
quest for convictions leads to the apprehension of an otherwise
law-abiding citizen who, if
554
left to his own devices, likely would have never run afoul of
the law, the courts should intervene.
Because we conclude that this is such a case and that the
prosecution failed, as a matter of law, to adduce evidence to
support the jury verdict that petitioner was predisposed,
independent of the Government's acts and beyond a reasonable doubt,
to violate the law by receiving child pornography through the
mails, we reverse the Court of Appeals' judgment affirming the
conviction of Keith Jacobson.
It is so ordered.
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 even
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. Cf.
United States v.
Hunt, 749 F.2d
1078, 1085 (CA4 1984) (ready response to solicitation shows
predisposition), cert. denied, 472 U. S. 1018 (1985);
United
States v.
Kaminski, 703 F.2d
1004, 1008 (CA7 1983) (" 'the most important factor ... is
whether the defendant evidenced reluctance to engage in criminal
activity which was overcome by repeated Government inducement''')
(quoting
United States v.
Reynoso-Ulloa, 548 F.2d
1329, 1336 (CA9 1977), cert. denied, 436 U. S. 926 (1978));
United States v.
Sherman, 200 F.2d
880, 882 (CA2 1952) (indication of pre-
555
disposition is a defendant's willingness to commit the offense
"'as evinced by ready complaisance'" (citation omitted)).
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." Record,
Government Exhibit 24. 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."
Id., Government
Exhibit 2. 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."
Id., Government Exhibit 3.
Government agents admittedly did not offer Mr. Jacobson the
chance to buy child pornography right away. Instead, they first
sent questionnaires in order to make sure that he was generally
interested in the subject matter. Indeed, a "cold call" in such a
business would not only risk rebuff and suspicion, but might also
shock and offend the uninitiated, or expose minors to suggestive
materials. Cf.
FCC v.
Pacifica Foundation, 438 U. S. 726, 748 (1978)
(right to be free from offensive material in one's home); 39 U. S.
C. § 3010 (regulating the mailing of sexually explicit advertising
materials). Mr. Jacobson's responses to the questionnaires gave the
investigators reason to think he would be interested in photographs
depicting preteen sex.
The Court, however, concludes that a reasonable jury could not
have found Mr. Jacobson to be predisposed beyond a reasonable doubt
on the basis of his responses to the Government's catalogs, even
though it admits that, by that time,
556
he was predisposed to commit the crime. The Government, the
Court holds, failed to provide evidence that Mr. J acobson'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."
Ante, at 550. 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.
I
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.
Sherman v.
United States, 356 U. S. 369,
372-376 (1958). See also
United States v.
Williams,
705 F.2d
603, 618, n. 9 (CA2), cert. denied, 464 U. S. 1007 (1983).
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, 287 U. S.
435, 442 (1932). Even in
Sherman v.
United States,
supra, in which the Court held that the defendant had been
entrapped as a matter of law, the Government agent had repeatedly
and unsuccessfully coaxed the defendant to buy drugs, ultimately
succeeding only by playing on the defendant's sympathy. The Court
found lack of predisposition based on the Government's numerous
unsuccessful attempts to induce the crime, not on the basis of
preliminary contacts with the defendant.
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 pre-
557
disposed before the Government induces the commission of the
crime, not before the Government makes initial contact with him.
There is no dispute here that the Government's questionnaires and
letters were not sufficient to establish inducement; they did not
even suggest that Mr. Jacobson should engage in any illegal
activity. If all the Government had done was to send these
materials, Mr. Jacobson's entrapment defense would fail. Yet the
Court holds that the Government must prove not only that a suspect
was predisposed to commit the crime before the opportunity to
commit it arose, but also before the Government came on the scene.
Ante, at 548-549.
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-of-the-mill sting operations,
ante, at 549-550, 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 bribetaker 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
558
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.'" 287 U. S., at 440. 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. 356 U. S., at 371.
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,"
ante, at 552, 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. While one of the HINT letters suggested that
lobbying efforts would be funded by sales from a catalog, Record,
Defendant's Exhibit 113, the catalogs actually sent, nearly a year
later, were from different fictitious entities (Produit Outaouais
and Far Eastern Trading Company), and gave no
559
suggestion that money would be used for any political purposes.
Id., Government Exhibit 22, Government Exhibit 2. Nor did
the Government claim to be organizing a civil disobedience
movement, which would protest the pornography laws by breaking
them. Contrary to the gloss given the evidence by the Court, the
Government's suggestions of illegality may also have made buyers
beware, and increased the mystique of the materials offered: "For
those of you who have enjoyed youthful material ... we have devised
a method of getting these to you without prying eyes of U. s.
Customs seizing your mail."
Id., Government Exhibit 1. Mr.
Jacobson's curiosity to see what" 'all the trouble and the
hysteria'" was about,
ante, at 547, is certainly susceptible
of more than one interpretation. And it is the jury that is charged
with the obligation of interpreting it. In sum, the Court fails to
construe the evidence in the light most favorable to the
Government, and fails to draw all reasonable inferences in the
Government's favor. It was surely reasonable for the jury to infer
that Mr. Jacobson was predisposed beyond a reasonable doubt, even
if other inferences from the evidence were also possible.
II
The second puzzling thing about the Court's opinion is its
redefinition of predisposition. The Court acknowledges that
"[p]etitioner's responses to the many communications prior to the
ultimate criminal act were ... indicative of certain personal
inclinations, including a predisposition to view photographs of
preteen sex .... "
Ante, at 551. If true, this should have
settled the matter; Mr. Jacobson was predisposed to engage in the
illegal conduct. Yet, the Court concludes, "petitioner's responses
hardly support an inference that he would commit the crime of
receiving child pornography through the mails."
Ibid.
The Court seems to add something new to the burden of proving
predisposition. Not only must the Government
560
show that a defendant was predisposed to engage in the illegal
conduct, here, receiving photographs of minors engaged in sex, but
also that the defendant was predisposed to break the law knowingly
in order to do so. The statute violated here, however, does not
require proof of specific intent to break the law; it requires only
knowing receipt of visual depictions produced by using minors
engaged in sexually explicit conduct. See 18 U. S. C. § 2252(a)(2);
United States v.
Moncini, 882 F.2d
401, 404-406 (CA9 1989). Under the Court's analysis, however,
the Government must prove
more to show predisposition than
it need prove in order to convict.
The Court ignores the judgment of Congress that specific intent
is not an element of the crime of receiving sexually explicit
photographs of minors. The elements of predisposition should track
the elements of the crime. The predisposition requirement is meant
to eliminate the entrapment defense for those defendants who would
have committed the crime anyway, even absent Government inducement.
Because a defendant might very well be convicted of the crime here
absent Government inducement even though he did not know his
conduct was illegal, a specific intent requirement does little to
distinguish between those who would commit the crime without the
inducement and those who would not. In sum, although the fact that
Mr. Jacobson's purchases of Bare Boys I and Bare Boys II were legal
at the time may have some relevance to the question of
predisposition, it is not, as the Court suggests, dispositive.
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.
Ante, at 553, quoting
Sorrells, 287 U. S., at 448.
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 Mr. Jacobson was a
willing participant in the crimi-
561
nal activity here or an innocent dupe. The jury is the
traditional "defense against arbitrary law enforcement."
Duncan v.
Louisiana, 391 U. S. 145, 156
(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. 287 U. S., at 452. 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.
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