Alperin, Scott N.

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Recent Developments: Jacobson v. United States: Entrapment Defense Prevailed Where Government Failed to Prove Criminal Predisposition Existed before Investigation Induced Defendant to Break the Law

University of Baltimore School of Law

University of Baltimore Law ForumVolume 23Number 2 Fall, 1992 Article 71992Recent Developments: Jacobson v. United States:Entrapment Defense Prevailed WhereGovernment Failed to Prove CriminalPredisposition Existed before Investigation InducedDefendant to Break the LawScott N. AlperinFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationAlperin, Scott N. (1992) "Recent Developments: Jacobson v. United States: Entrapment Defense Prevailed Where Government Failedto Prove Criminal Predisposition Existed before Investigation Induced Defendant to Break the Law," University of Baltimore LawForum: Vol. 23 : No. 2 , Article 7.Available at: http://scholarworks.law.ubalt.edu/lf/vol23/iss2/71863. The dissent, therefore, con-cluded that it was no longer necessary to enforce sweeping suppression of political speech subject to the protec-tion of the First Amendment. In addition to overbreadth, the dis-sent noted that the statute discrimi-nated in its regulation of speech. The dissent asserted that the plurality failed to inquire whether this discrimination was related to the pwported state inter-est. Id. at 1864. The dissent opined that the State did not isolate any legiti-mate state interest justifying the selec-tive prohibition because the same evil can result from unrestricted conduct. Id. at 1865. Finally, the dissent argued that the plurality's opinion represents a depar-ture from the "strict scrutiny" stan-dard. Id. First, the Court replaced the requirement of a showing of "neces-sity" with the need to show longstanding tradition. Id. Second, the Court modified the requirement of "narrowly drawn" by granting the State broad power to legislate in a prospec-tive manner in an effort to respond to possible future difficulties. Id. Third, the dissent noted that if the State no longer needs to show that other expres-sive conduct does not pose the same danger, it no longer has the burden of showing justification for the law. Id. at 1866. The dissent thus concluded that the presence of campaign workers out-side a polling place was not more than a minor nuisance and that there was no justification for suppressing their free-dom of speech. Id. at 1866-67. By its ruling in Burson, the Su-preme Court perpetuates the longstanding tradition of allowing a state to regulate the areas surrounding a polling facility on election day. How-ever, because this is only a plurality decision, with a strong dissent, this ruling may represent a departure from this tradition. In addition, Burson v. Freeman is significant because it holds that the right to freely cast a ballot in an election is a fundamental right which justifies limiting an individual's right to freedom of speech. - Julie Buchwald Jacobson v. United States: ENTRAP-MENT DEFENSE PREVAILED WHERE GOVERNMENT FAILED TO PROVE CRIMINAL PREDIS-PosmON EXISTED BEFORE IN-VESTIGATION INDUCED DE-FENDANTTOBREAKTHELAW. In Jacobson v. United States, 112 S. Ct. 1535 (1992), the United States Supreme Court held that once the de-fense of entrapment is asserted, the government must establish that acrimi-nal defendant's independent predispo-sition to commit the crime for which he was arrested existed before the initia-tion ofa government investigation into the matter. The Court concluded that as a matter of law the prosecution failed to generate sufficient evidence to support a jury verdict that the defen-dant possessed the requisite prior crimi-nal disposition beyond a reasonable doubt. In 1984, Nebraska farmer Keith Jacobson ordered magazines contain-ing photos of nude teen and preteen boys from an adult bookstore in Cali-fornia. Jacobson legally received these publications and he maintained that he expected them to include pictures of young men, eighteen years of age or older. Congress subsequently passed the Child Protection Act of 1984, 18 U.S.C. § 2252(1984), which made the receipt of sexually explicit pictures of children through the mail illegal. In an effort to enforce the new law and to target potential offenders, government officials obtained Jacobson's name from the mailing list of the California bookstore. Under the guise of promoting sexual freedom and freedom of choice, fed-eral law enforcement agents posed as representatives of various lobbying organizations, seeking responses to several questionnaires and surveys in an attempt to determine Jacobson's sexual preferences and propensity to violate the law. From these correspon-dences, the Government succeeded in eliciting an indication of his interest in preteen homosexual materials, but un-covered no other evidence that Jacobson had intentionally possessed child por-nography in contravention of the law. After continuing its mailings over a period of twenty-six months, the Gov-ernment sent letters to Jacobson from fictitious companies which decried censorship and the hysteria concerning pornography. The letters also invited him to request more information about ordering materials depicting young boys engaged in various sexual activi-ties. Iacobson responded to these cor-respondences and received brochures from the bogus companies. Although he never received the materials he had ordered from the first mailing, Jacobson was arrested after a controlled delivery of his second catalogue order of a publication containing sexually explicit photographs of young males. Jacobson was indicted in the United States District Court for the District of Nebraska for violating the Child Pro-tection Act. In a search of his home, the Government found no materials related to child pornography exceptthe two original legally ordered magazines and the correspondences sent by law enforcement agents during their inves-tigation. At trial, Jacobson testified that he ordered the magazines because the Government had succeeded in arousing his curiosity. Although the jury was instructed on the defense of entrapment, Jacobson was convicted On appeal, the United States Court of Appeals for the Eighth Circuit, sitting en bane. affirmed the lower court's decision and concluded that Jacobson was not entrapped as a matter of law. The Supreme Court thereafter granted certiorari to review the issue ofentrap-ment. The Court began its analysis by recognizing that the Government in its law enforcement capacity may afford an opportunity for the commission of an offense. Jacobson, 112 S. Ct. at 1540. It may not, however, employ its agents to instill in an innocent person's mind the inclination to commit a crime, and then induce a criminal act in order to prosecute. Id. The Court concluded that where Government agents have 23.2 I The Law For u m 23 "induced an individual to break the law and the defense of entrapment is at issue .. . . the prosection must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being ap-proached by Government agents." Jacobson, 112 S. Ct. at 1540 (citing United Statesv. Whoie, 925 F.2d 1481 (D.C. Cir. 1991». The Court next explained that in a situation where an individual is merely presented with the opportunity to com-mit a crime, the immediate willingness to engage in criminal conduct gives a clear indication of a defendant's crimi-nal predisposition. Id. at 1541. Jacobson's conviction, however, in-volved an extended effort on the part of the Government, culminating in an arrest only after twenty-six months of ongoing correspondence with fictitious organizations. Id. Thus, the Court ruled that although Jacobson may have been predisposed to receive mail-order child pornography by the time of his arrest in 1987, the Government did not prove that this inclination developed independently ofthe investigation di-rectedtowardJacobsonsince 1985. Id. The evidence produced by the Gov-ernmentconcerning Jacobson's sexual propensity prior to the law enforce-ment mail campaign was insufficient to support a finding of his predisposi-tion to commit a criminal act. Id. The Court opined that the receipt of two magazines from a California bookstore, as the sole piece of such pre-investiga-tive evidence, could indeed indicate Jacobson's desire to view sexually ori-ented photographs. Id. This inference, however, merely demonstrated a cer-tain preference to act within a broad range of sexual conduct, only some of which was criminal, and thus was not probative of a predisposition to engage in illegal activity. Id. The Court further acknowledged that because most people tend to obey the law even if they disagree with it, evidence of one's inclination to perfonn what was once a lawful act does not justify an inference of a tendency to perfonn that 24 The Law For u m 123.2 which is now illegal. Id. at 1542. Similarly, the Court emphasized that evidence produced during the in-vestigation failed to prove Jacobson's predisposition to receive child pornog-raphy through the mail. Id The Court viewed his responses to the many com-munications prior to the commission of the actual crime as indicative only of Jacobson's personal inclinations and interests rather than sufficing as proof of any criminal design on his part. Id. Furthennore, the Government's tactic in its solicitation was to suggest to Jacobson that viewing the prohibited sexually oriented materials should be within his constitutional privilege of freedom of choice. Id. The Court concluded that the Government ex-erted considerable pressure on him to obtain the outlawed materials as a pro-test against an encroachment on his constitutionally guaranteed individual liberties. Id. Consequently, rational jurors could not detennine beyond a reasonable doubt that, absent the pro-tracted investigation by the Govern-ment, Jacobson was autonomously pre-disposed to commit the crime. Id. at 1543. In a lengthy dissent, Justice O'Connor, joined by Chief Justice Rhenquist, Justice Kennedy, and in part by Justice Scalia, maintained that the majority's position unnecessarily usurped a reasonable jury inference of predisposition. Id. at 1544. In the dissent's view, the holding redefined the tenn ''predisposition'' and placed a new requirement on law enforcement officials by demanding a detennina-tion ofa "reasonable suspicion ofille-gal activity before contacting a sus-pect." Id.at 1544. Theminorityargued that the Government cannot induce a suspect to commit a criminal act through its communications until it actually provides the opportunity to engage in such illegal conduct, be-cause until then, there can be no find-ing of an implantation of criminal de-sign in the mind of an innocent person. Id. In addition, the dissent lamented that the Government must now show not only that a suspect was predisposed to commit a crime before an opportu-nity was presented, but also that such person was criminally predisposed before the Government came on the scene. Id. at 1545. Furthennore, Jus-tice O'Connor reasoned that the readi-ness with which Jacobson responded to the opportunity to commit the crime indicated that he likely would have broken the law if left to his own de-vices. Id at 1543-44. Jacobson v. United States repre-sents an important clarification of the law of entrapment because it places a limitation on the Government's use of undercover agents to enforce the law. The Supreme Court thus has reaffirmed the individual's right of freedom from unwarranted government intrusion by recognizing a level of intervention by law enforcement officers at which a finding of criminal predisposition by a jury is unreasonable. Jacobson will effectively prompt the courts to scruti-nize more carefully law enforcement sting operations, and will ultimately provide criminal defendants with a heightened opportunity to argue for exoneration if induced to engage in illegal activity by government offi-cials. - Scott N. Alperin WUJiams v. UnitedStates: SUPREME COURT ESTABLISHES NA-TIONAL CONSENSUS REGARD-INGTHESCOPEOFAPPELLATE REVIEWUNDERTHESENTENC-ING REFORM ACT OF 1984. In Williams v. United States, 112 S. Ct. 1112 (1992), the Supreme Court reviewed the Sentencing Refonn Act of 1984 ("Sentencing Act") in an at-tempt to establish a national consensus on the scope of appellate review when a district court's sentence varies from the United States Sentencing Commis-sion Guidelines ("Guidelines").. The Court held that when a lower court relies on both valid and invalid factors during sentencing, a reviewing court cannot affirm a sentence solely on its independent assessment that the dis-

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Recent Developments: Jacobson v. United States: Entrapment Defense Prevailed Where Government Failed to Prove Criminal Predisposition Existed before Investigation Induced Defendant to Break the Law

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