Jacobson v. United States

1992 US Supreme Court case on entrapment

Jacobson v. United States, 503 U. S. 540 (1992), is a case decided by the United States Supreme Court regarding the criminal procedure topic of entrapment. A narrowly divided court overturned the conviction of a Nebraska man for receiving child sexual abuse material through the mail, ruling that postal inspectors had implanted a desire to do so through repeated written entreaties. It was the first time the court had considered an entrapment case from outside the realm of controlled substance enforcement, or one involving conduct that had only recently been criminalized. By relying exclusively on whether the defendant had a predisposition to commit the crime, the court appeared to have finally resolved a lingering issue in its previous decisions on the subject. The decision was seen as a rare triumph for defendants before a conservative court that frequently sided with prosecutors. Guidelines for federal law enforcement agents were changed in its wake, and it was described as having brought entrapment "back from the dead."

Until the late 1970s, there were no federal laws specifically addressing the production, distribution or possession of child sexual abuse material (CSAM), and it was readily available to those who sought it. While some was imported from European countries where it was produced, there was also a domestic industry. Media exposés and popular outrage led Congress to pass by unanimous vote the Protection of Children Against Sexual Exploitation Act of 1977 (SEOC), which criminalized the production and sale of child pornography. This act was signed into law by President Jimmy Carter on February 6, 1978. The legislation was supported by a unanimous decision of the Supreme Court in New York v. Ferber, , that images of children need not meet legal definitions of obscenity to be prohibited by the government, since the state's interest in protecting children from harm trumped First Amendment rights in this instance. Shortly thereafter, an update to the SEOC Act, the Child Protection Act of 1984, made it illegal to purchase pornographic materials depicting minors through the mail, or possess them, on the grounds that it encouraged child sexual abuse. While popular with voters, civil liberties advocates warned that the expanded scope of these laws could result in prosecutions of entirely innocent people who had little or nothing to do with the child porn industry, such as parents taking photos or videos of their children in the nude. Nevertheless, investigators forged ahead and had, by the mid 1980s, shut down almost all domestic child porn production. The government itself was thereafter the biggest marketer, in the form of materials it created to tempt buyers.

In January 1985 inspectors for the United States Postal Service (USPS) in the Great Plains states began "Project Looking Glass", a sting operation under the newly enacted Child Protection Act of 1984, which made it illegal to send pictures of nude minors through the mail, even for noncommercial purposes (previously, only those who intended to resell them could be prosecuted). Ray Mack, the inspector in charge, meant it to be primarily an intelligence gathering operation, a way to keep tabs on producers and distributors. although he said he had never had relations with men. Jacobson had, the previous year, ordered two magazines entitled Bare Boys I and Bare Boys II from Electric Moon, an adult bookstore in San Diego, California, that had been raided and shut down. USPS investigators decided to send him a letter from a fictitious organization, the "American Hedonist Society", which supposedly sought to lobby for "the 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." Included was a questionnaire attempting to gauge the respondent's interest in various paraphilias, including pedophilia and ephebophilia. Jacobson indicated an "above average" interest in the latter, especially between males, but also stated he was opposed to the former. The USPS decided he was not a promising target and left him alone. But some time later, Calvin Comfort, a "prohibited mailing specialist" for the region, found Jacobson's name in another file, and the government decided to try again, this time as part of an operation aimed at purchasers. In May 1986, they sent him mail from another fictitious organization, "Midlands Data Research", which was for those who "believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite age". Jacobson confessed to them that he was "interested in teenage sexuality", asked for more information and that his name be kept confidential. This led to Jacobson getting mail from the "Heartland Institute for a New Tomorrow" (HINT), "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." Jacobson seemed to sympathize, writing in response that sexual freedom and freedom of the press were under attack by "right wing fundamentalists". Along with a thank you note from "Jean Daniels" of HINT also came a supposed list of others in the area with similar interests as possible pen pals. But Jacobson never wrote to any of them. So Comfort, under the pseudonym "Carl Long", wrote back using a technique called "mirroring", claiming to have interests calculated to be similar to those believed held by Jacobson, and specifically, to be equally interested in depictions of sex acts between young boys. Jacobson said he, too, liked "good looking young guys (in their late teens and early 20s) doing their thing together". Neither Jacobson nor Comfort made any more explicit reference to pornographic materials and Jacobson stopped writing back after two letters. With no evidence that he had ever watched or possessed any CSAM, the USPS again dropped its efforts against him. Those were renewed in March 1987 when the United States Customs Service sent similar exploratory material, supposedly from Canada, to Jacobson and others on the USPS's list, and he responded, placing an order that was never filled. A catalog from a "Far Eastern Trading Company" was sent instead, along with other written material bemoaning the infringement of sexual freedoms. This time Jacobson ordered a publication called Boys Who Love Boys, which the catalog said featured "11 and 14 year old boys" who "get it on in every way imaginable. Oral, anal and heavy masturbation. If you love boys," it further read, "you will be delighted with this". On June 16, 1987, Jacobson received a card in his mail telling him to go to the post office and pick up the envelope that supposedly contained Boys Who Love Boys. Comfort observed him doing so and got a search warrant for his home on that basis. He was arrested shortly thereafter, 26 months after the postal inspectors had first contacted him.

Jacobson was indicted on one count of knowingly receiving through the mails sexually explicit material depicting a minor in September. At trial in federal court, his attorney, George H. Moyer, noted his exemplary military service record, including a Bronze Star, service in Korea and Vietnam War and lack of a civilian criminal record beyond a drunken driving conviction in 1958. He raised the entrapment defense. Jacobson testified that he had been "shocked and surprised" by the contents of the Bare Boys collections when he received them, as he had not expected the photos to depict very young boys: "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". The jury convicted him in April 1988. He was sentenced to three years imprisonment, suspended to two years' probation and 250 hours of community service, which he discharged by painting a school bus and working at a library. He had to sell his share of the family farm to his sister to pay his legal bills, and was fired from his job driving a school bus in Newman Grove even though there was no evidence he had ever approached children sexually. He lowered his profile, often driving to more distant communities to run routine errands. Nonetheless, his hometown supported him. "Any of us could be caught up in such a sting," the Newman Grove local newspaper editorialized. Judge George G. Fagg said in dissent that his colleagues had "declared war on the government's power to initiate undercover investigations" and that reasonable suspicion need not be present for such operations to take place. He would carry the day after federal prosecutors appealed for an en banc rehearing by the entire court, reiterating that point for an eight judge majority and saying that unless Jacobson could demonstrate that a specifically protected right had been violated by the investigation, the conviction should stand. The majority also rejected the entrapment defense, arguing that the postal investigators had merely provided Jacobson with opportunities to purchase CSAM and not sought to affect his predisposition (an important element in entrapment under U. S. law) to do so in any way. Lay and Heaney were the sole dissenters, and wrote separate opinions based upon two different grounds. The former argued that Jacobson had not in fact shown "predisposition" toward breaking the law throughout his life, since the only known prior purchases and basis for belief by prosecutors, were purchases he had made at a time this was a legal act; Lay therefore concluded that without evidence of prior disposition to break the law in this way, he had been entrapped. The latter's dissent was similar to the original panel opinion, arguing that the government had no reasonable belief that Jacobson would purchase CSAM. He also called investigative tactics sufficiently outrageous to justify reversal: "In my view, the government's investigation and prosecution of Jacobson amount to the deliberate manufacture of a crime that would never have occurred but for the Postal Service's overzealous efforts to create it".

John Paul Stevens, Associate Justice of the Supreme Court supposedly picked Jacobson's case out of a pile of "hopeless" certiorari petitions. After reading it, Justice Byron White made an argument moving and persuasive enough that Justices Harry Blackmun, Thurgood Marshall, and Stevens changed their minds and agreed to accept it. Regardless of how certiorari was granted, arguments before the Court were limited by the grant to the single issue in question: whether, as a matter of law, Jacobson had been entrapped.

The entrapment defense at the federal level exists entirely in case law. Federal courts first recognized entrapment in Woo Wai v. United States, 223 F 412 (9th Circuit 1915), and the Supreme Court followed suit in Sorrells v. United States,
The Sorrells court grounded the entrapment defense in what has since been called the "subjective" test, in which the prosecution must overcome it by showing the defendant had a "predisposition" to commit the crime in any event. In Sherman v. United States, 356 U. S. 369 (1958), Felix Frankfurter, in a concurrence, had argued instead for an "objective" standard, which focuses instead on the conduct of the law enforcement personnel involved and whether the crime would have occurred without their involvement, a call repeated by other justices in later decisions. While the majority of states have chosen to use the objective method, the Supreme Court has held firm to the former.

Jacobson's case attracted some national media attention. Civil liberties advocates including the ACLU supported him, worried over what they saw as dangerous growth in government police powers during the Reagan and Bush administrations, when law enforcement were alleged to have cracked down on drugs as well as pornography distribution at the behest of the Religious Right. Operation Looking Glass, the USPS claimed, had netted 147 convictions, but only 35 where evidence was found that the offenders had either been involved in producing CSAM or molested children. Critics claimed that the government was exaggerating the problem at best and contributing to it at worst, possibly by introducing some consumers to material they might never have developed a taste for otherwise. It was the subject of a 60 Minutes segment, in which Jacobson told Mike Wallace, after pausing for several seconds and looking downward, that he broke down and ordered Boys Who Love Boys because he wanted to see just what it was that he was being so heavily solicited to buy. A postal inspector also admitted to the show that since it had successfully put most CSAM producers out of business, it was now going after consumers with material of its own. Interested parties on both sides filed amici. A group of conservative Republicans in both houses of Congress, including Newt Gingrich, Dick Armey, Henry Hyde and Rick Santorum, and the National Center for Missing and Exploited Children both argued for affirming the conviction, pointing to the invaluable nature of undercover investigations in fighting CSAM, worrying that requiring reasonable suspicion beforehand could make such operations impossible. Americans for Effective Law Enforcement said there had been no entrapment and that reasonable suspicion was not required before starting investigations such as Looking Glass. The American Civil Liberties Union, its Nebraska chapter and the National Association of Criminal Defense Lawyers weighed in on Jacobson's behalf.

Moyer, who had never argued before the Supreme Court, continued to represent Jacobson (who was in the audience). In his brief and at oral argument, he said that a mere stated interest in sex among young men did not rise to a level of proving predisposition, that the government should have had evidence in hand that Jacobson was actually willing to break the law to do so. (Kenneth Starr, then Solicitor General, had maintained in the government's brief opposing certiorari that his prior purchase of the Bare Boys magazines was all the proof it needed, even if the action were legal at the time.) Pressed on other undercover investigative techniques, he admitted that a government run pawn shop would be a permissible way to apprehend thieves despite a lack of evidence of predisposition because the crimes might well have occurred prior to any contact with the government or its operatives. During oral argument, Justice Antonin Scalia responded to this by suggesting that some interests a person might express, such as recreational drugs, signified a willingness to violate social norms regardless of whether the conduct was illegal or not. Paul Larkin, who appeared for the government, had to admit to that there was no case law on entrapment where something that had previously been permitted was now prohibited. At one point, trying to argue that Jacobson did not have access to the defense of entrapment by estoppel (where the government persuades an actor that it is legal to do something, only to prosecute them for it), Scalia told Larkin he'd lost him.

By a 5–4 margin, the justices reversed the conviction, agreeing that Jacobson had been entrapped, on April 6, 1992. It has since been reported that this was one of the rare cases where the decision changed after arguments. The original poll of the justices showed a 7–2 majority for affirmance, with only White and Stevens holding out. But White argued persuasively for reversal to his fellow Justices, and Blackmun and Clarence Thomas, who had replaced Marshall, changed their minds. It has been suggested that Thomas, who later established a reputation for allowing wide latitude to law enforcement similar to other contemporary Republican appointees, was especially sensitive at that time to Jacobson's situation due to the sexual harassment allegations raised by Anita Hill during his own recent confirmation hearings. Justice David Souter later provided the swing vote, and opinions that White and Sandra Day O'Connor had already begun drafting had to be rewritten to reflect the changed outcome of the case.

New York Times''' reporter Linda Greenhouse described the initial verdict as "an anomaly, an extreme misuse of Government power in which an innocent person was led to commit a manufactured crime" and thus not likely to signal a shift back in favor of defendants after a period that had seen a move away from the liberalism of the Warren and Burger Courts towards a more law and order–oriented Court. the Chicago Tribune, and the Washington Post – praised the court's decision, as did Jacobson's hometown paper, the Omaha World Herald. Columnists on both sides of the political spectrum, from Clarence Page to William Safire joined in celebrating his turn of fate and criticizing the excessive zeal of the postal inspectors. Civil liberties advocates savored what they felt was an overdue triumph against the overreach of law enforcement during the preceding decade. " (W)hen the State gets behind a moral panic, no one is safe," wrote Bob Chatelle of the political issues committee of the National Writers' Union, pointing to other zealous prosecutions of people with no demonstrable interest in CSAM who had nevertheless fallen afoul of newer laws by taking or possessing pictures of naked children with no apparent sexual content. Others pointed to what they called the horrific cost of Project Looking Glass. Among its other targets had been another middle aged Nebraska farmer, Bob Brase, of Shelby. Like Jacobson, his name had been on the mailing list of a porn distributor, and despite neither having a criminal record nor any interest in CSAM he was relentlessly solicited, including letters from the same "Carl Long". Finally he ordered a videotape and was arrested and indicted. No other prohibited material was found in his house, either. Just before he was to be arraigned, he drove into a field and shot himself, leaving behind a wife and two children. His was one of four suicides by Looking Glass targets. LegacyJacobson, opined Paul Marcus, a law professor at William & Mary three years later, "brought entrapment back from the (almost) dead." He noted that in its wake, courts were much more willing to allow, and sometimes agree with, entrapment defenses than they had been beforehand. Despite vows by prosecutors and heads of federal law enforcement agencies that the decision would not change the way they did undercover operations, there were some noticeable, at least at the federal level. Later versions of the Attorney General's Guidelines on FBI Undercover Operations, widely emulated by other federal agencies, show some changes in language from those published before Jacobson. "Entrapment should be avoided", became "entrapment must be avoided", and investigators were told it must be apparent to them that the activity they were investigating was illegal, rather than just corrupt. A definition of entrapment was included that used the same language as the decision. Subsequent lower court jurisprudenceJacobson remains the Court's current standard on the issue as it has not considered an entrapment case since. Similar sting operations continue to be widely used against all types of targets and in new ways. Most significantly, the rise of the Internet has led to operations where investigators pose as minors of either sex in chat rooms, trying to entice online predators to come meet them in person and have sex. When they do, they are arrested. These operations have become popular viewing on Dateline NBCs "To Catch A Predator" segments and other television shows. Most such operations are over very quickly and result in guilty pleas, but entrapment is sometimes alleged, and a protracted investigation of a Florida man led to the first Internet entrapment case to be considered at the appellate level. Writing for a Ninth Circuit majority (the arrest occurred in California) in Poehlman v United States, 217 F3d 692 (9th Cir 2000), Judge Alex Kozinski reversed the conviction, saying the defendant had met the Jacobson'' standard and shown that the idea of crossing state lines to have sex with a minor had been implanted only after extensive email correspondence with an undercover FBI agent. In 2014 a case resulting from a sting operation was ruled by a Federal court to have been "cut from whole cloth" by ATF operatives and to have constituted as entrapment by the ATF; the case was thrown out.

Kenneth Lord notes that the decision did not address the subjective vs. objective test question at all. But beyond that, it makes no effort to address the subjective vs. objective question, nor does its discussion of intent delve into the matter of specific vs. general intent. Some appeals courts, however, have developed more specific entrapment tests on their own. University of Arizona law professor Gabriel J. Chin points out that the entire federal entrapment defense rests on statutory construction, which allows for the possibility that Congress could simply repeal or modify it so that operations implanting suggestion of criminal activity such as the one that ensnared Jacobson were specifically authorized by law. Since the majority had shown such distaste for it, how, he wondered, would it rule on the constitutionality of such a law if it were to be challenged?