University of Baltimore Law Forum Volume 23 Article 7 Number 2 Fall, 1992
1992 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 Scott .N Alperin
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Recommended Citation Alperin, Scott .N (1992) "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 Law Forum: Vol. 23 : No. 2 , Article 7. Available at: http://scholarworks.law.ubalt.edu/lf/vol23/iss2/7
This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. 1863. The dissent, therefore, con Jacobson v. United States: ENTRAP had intentionally possessed child por cluded that it was no longer necessary MENT DEFENSE PREVAILED nography in contravention of the law. to enforce sweeping suppression of WHERE GOVERNMENT FAILED After continuing its mailings over a political speech subject to the protec TO PROVE CRIMINAL PREDIS period oftwenty-six months, the Gov tion of the First Amendment. PosmON EXISTED BEFORE IN ernment sent letters to Jacobson from In addition to overbreadth, the dis VESTIGATION INDUCED DE fictitious companies which decried sent noted that the statute discrimi FENDANTTOBREAKTHELAW. censorship and the hysteria concerning nated in its regulation of speech. The In Jacobson v. United States, 112 pornography. The letters also invited dissent asserted that the plurality failed S. Ct. 1535 (1992), the United States him to request more information about to inquire whether this discrimination Supreme Court held that once the de ordering materials depicting young was related to the pwported state inter fense of entrapment is asserted, the boys engaged in various sexual activi est. Id. at 1864. The dissent opined government must establish that acrimi ties. Iacobson responded to these cor that the State did not isolate any legiti nal defendant's independent predispo respondences and received brochures mate state interest justifying the selec sition to commit the crime for which he from the bogus companies. Although tive prohibition because the same evil was arrested existed before the initia he never received the materials he had can result from unrestricted conduct. tion ofa government investigation into ordered from the first mailing, Jacobson Id. at 1865. the matter. The Court concluded that was arrested after a controlled delivery Finally, the dissent argued that the as a matter of law the prosecution of his second catalogue order of a plurality's opinion represents a depar failed to generate sufficient evidence publication containing sexually explicit ture from the "strict scrutiny" stan to support a jury verdict that the defen photographs of young males. dard. Id. First, the Court replaced the dant possessed the requisite prior crimi Jacobson was indicted in the United requirement of a showing of "neces nal disposition beyond a reasonable States District Court for the District of sity" with the need to show doubt. Nebraska for violating the Child Pro longstanding tradition. Id. Second, In 1984, Nebraska farmer Keith tection Act. In a search of his home, the Court modified the requirement of Jacobson ordered magazines contain the Government found no materials "narrowly drawn" by granting the State ing photos of nude teen and preteen related to child pornography exceptthe broad power to legislate in a prospec boys from an adult bookstore in Cali two original legally ordered magazines tive manner in an effort to respond to fornia. Jacobson legally received these and the correspondences sent by law possible future difficulties. Id. Third, publications and he maintained that he enforcement agents during their inves the dissent noted that if the State no expected them to include pictures of tigation. At trial, Jacobson testified longer needs to show that other expres young men, eighteen years of age or that he ordered the magazines because sive conduct does not pose the same older. Congress subsequently passed the Government had succeeded in danger, it no longer has the burden of the Child Protection Act of 1984, 18 arousing his curiosity. Although the showing justification for the law. Id. at U.S.C. § 2252(1984), which made the jury was instructed on the defense of 1866. The dissent thus concluded that receipt of sexually explicit pictures of entrapment, Jacobson was convicted the presence ofcampaign workers out children through the mail illegal. In an On appeal, the United States Court of side a polling place was not more than effort to enforce the new law and to Appeals for the Eighth Circuit, sitting a minor nuisance and that there was no target potential offenders, government en bane. affirmed the lower court's justification for suppressing their free officials obtained Jacobson's name decision and concluded that Jacobson dom of speech. Id. at 1866-67. from the mailing list of the California was not entrapped as a matter of law. By its ruling in Burson, the Su bookstore. The Supreme Court thereafter granted preme Court perpetuates the Under the guise ofpromoting sexual certiorari to review the issue ofentrap longstanding tradition of allowing a freedom and freedom of choice, fed ment. state to regulate the areas surrounding eral law enforcement agents posed as The Court began its analysis by a polling facility on election day. How representatives of various lobbying recognizing that the Government in its ever, because this is only a plurality organizations, seeking responses to law enforcement capacity may afford decision, with a strong dissent, this several questionnaires and surveys in an opportunity for the commission of ruling may represent a departure from an attempt to determine Jacobson's an offense. Jacobson, 112 S. Ct. at this tradition. In addition, Burson v. sexual preferences and propensity to 1540. It may not, however, employ its Freeman is significant because it holds violate the law. From these correspon agents to instill in an innocent person's that the right to freely cast a ballot in an dences, the Government succeeded in mind the inclination to commit a crime, election is a fundamental right which eliciting an indication ofhis interest in and then induce a criminal act in order justifies limiting an individual's right preteen homosexual materials, but un to prosecute. Id. The Court concluded to freedom of speech. covered no other evidence that Jacobson that where Government agents have - Julie Buchwald 23.2 I The Law For u m 23 "induced an individual to break the law which is now illegal. Id. at 1542. not only that a suspect was predisposed and the defense of entrapment is at Similarly, the Court emphasized to commit a crime before an opportu issue .. . . the prosection must prove that evidence produced during the in nity was presented, but also that such beyond a reasonable doubt that the vestigation failed to prove Jacobson's person was criminally predisposed defendant was disposed to commit the predisposition to receive child pornog before the Government came on the criminal act prior to first being ap raphy through the mail. Id The Court scene. Id. at 1545. Furthennore, Jus proached by Government agents." viewed his responses to the many com tice O'Connor reasoned that the readi Jacobson, 112 S. Ct. at 1540 (citing munications prior to the commission ness with which Jacobson responded United Statesv. Whoie, 925 F.2d 1481 ofthe actual crime as indicative only of to the opportunity to commit the crime (D.C. Cir. 1991». Jacobson's personal inclinations and indicated that he likely would have The Court next explained that in a interests rather than sufficing as proof broken the law if left to his own de situation where an individual is merely ofany criminal design on his part. Id. vices. Id at 1543-44. presented with the opportunity to com Furthennore, the Government's tactic Jacobson v. United States repre mit a crime, the immediate willingness in its solicitation was to suggest to sents an important clarification of the to engage in criminal conduct gives a Jacobson that viewing the prohibited law of entrapment because it places a clear indication ofa defendant's crimi sexually oriented materials should be limitation on the Government's use of nal predisposition. Id. at 1541. within his constitutional privilege of undercover agents to enforce the law. Jacobson's conviction, however, in freedom of choice. Id. The Court The Supreme Court thus has reaffirmed volved an extended effort on the part of concluded that the Government ex the individual's right of freedom from the Government, culminating in an erted considerable pressure on him to unwarranted government intrusion by arrest only after twenty-six months of obtain the outlawed materials as a pro recognizing a level of intervention by ongoing correspondence with fictitious test against an encroachment on his law enforcement officers at which a organizations. Id. Thus, the Court constitutionally guaranteed individual finding ofcriminal predisposition by a ruled that although Jacobson may have liberties. Id. Consequently, rational jury is unreasonable. Jacobson will been predisposed to receive mail-order jurors could not detennine beyond a effectively prompt the courts to scruti child pornography by the time of his reasonable doubt that, absent the pro nize more carefully law enforcement arrest in 1987, the Government did not tracted investigation by the Govern sting operations, and will ultimately prove that this inclination developed ment, Jacobson was autonomously pre provide criminal defendants with a independently ofthe investigation di disposed to commit the crime. Id. at heightened opportunity to argue for rectedtowardJacobsonsince 1985. Id. 1543. exoneration if induced to engage in The evidence produced by the Gov In a lengthy dissent, Justice illegal activity by government offi ernmentconcerning Jacobson's sexual O'Connor, joined by Chief Justice cials. propensity prior to the law enforce Rhenquist, Justice Kennedy, and in - Scott N. Alperin ment mail campaign was insufficient part by Justice Scalia, maintained that to support a finding of his predisposi the majority's position unnecessarily WUJiams v. UnitedStates: SUPREME tion to commit a criminal act. Id. The usurped a reasonable jury inference of COURT ESTABLISHES NA Court opined that the receipt of two predisposition. Id. at 1544. In the TIONAL CONSENSUS REGARD magazines from a California bookstore, dissent's view, the holding redefined INGTHESCOPEOFAPPELLATE as the sole piece ofsuch pre-investiga the tenn ''predisposition'' and placed a REVIEWUNDERTHESENTENC tive evidence, could indeed indicate new requirement on law enforcement ING REFORM ACT OF 1984. Jacobson's desire to view sexually ori officials by demanding a detennina In Williams v. United States, 112 ented photographs. Id. This inference, tion ofa "reasonable suspicion ofille S. Ct. 1112 (1992), the Supreme Court however, merely demonstrated a cer gal activity before contacting a sus reviewed the Sentencing Refonn Act tain preference to act within a broad pect." Id.at 1544. Theminorityargued of 1984 ("Sentencing Act") in an at range of sexual conduct, only some of that the Government cannot induce a tempt to establish a national consensus which was criminal, and thus was not suspect to commit a criminal act on the scope ofappellate review when probative ofa predisposition to engage through its communications until it a district court's sentence varies from in illegal activity. Id. The Court actually provides the opportunity to the United States Sentencing Commis further acknowledged that because engage in such illegal conduct, be sion Guidelines ("Guidelines").. The most people tend to obey the law even cause until then, there can be no find Court held that when a lower court if they disagree with it, evidence of ing of an implantation of criminal de relies on both valid and invalid factors one's inclination to perfonn what was sign in the mind ofan innocent person. during sentencing, a reviewing court once a lawful act does not justify an Id. In addition, the dissent lamented cannot affirm a sentence solely on its inference ofa tendency to perfonn that that the Government must now show independent assessment that the dis-
24 The Law For u m 123.2