United States v. Keith M. Jacobson , 893 F.2d 999 ( 1990 )

HEANEY, Senior Circuit Judge.

Keith Jacobson was convicted of one count of receiving child pornography through the mails. On appeal, Jacobson argues that he was entrapped as a matter of law because the government failed to show that he was predisposed to commit the crime and that the government’s outrageous conduct gave rise to a violation of due process. We overturn the conviction because, before instituting an undercover operation at Jacobson, the government had no evidence giving rise to a reasonable suspicion that Jacobson had committed a similar crime in the past or was likely to commit such a crime in the future.

I. BACKGROUND

Keith Jacobson is a fifty-seven year old resident of Newman Grove, Nebraska, currently living on a family farm and supporting his parents. Jacobson served in the Korean and Vietnam Wars, for which he received the Bronze Star and the Army Commendation Medal. He has no criminal history, with the exception of a conviction for driving while intoxicated in 1958.

On February 4, 1984, Jacobson ordered two magazines and a brochure from Dennis Odom, who does business as the Electric Moon in San Diego, California. On May 11,1984, the government executed a search warrant on the Electric Moon business premises and seized the business’ mailing list. Jacobson’s name and address were on that mailing list.

The two magazines Jacobson ordered were “Bare Boys I” and “Bare Boys II.” They were nudist magazines, the receipt of which did not violate any law. Receipts for his order were found in Blue Moon’s files. Jacobson also ordered a brochure in which he failed to order any materials or contact any of the sources listed. The government had no other information at the time that Jacobson was purchasing through the mails or producing child pornography, or that he was predisposed to do either.

Nevertheless, the government made Jacobson the target of five undercover sting operations over a period of two and one-half years. Various postal inspectors surreptitiously contacted Jacobson more than eleven times. Jacobson answered a survey sent to him during the first undercover operation. In his response, he indicated a predisposition to receive through the mails sexually explicit materials depicting children. After several opportunities to purchase such materials under government observation, Jacobson ordered “Boys Who Love Boys,” a magazine containing sexually explicit materials depicting minors. After sending him this publication, government agents arrested Jacobson and searched his home. No other illegal materials were found.

The government indicted Jacobson on September 14, 1987, on one count of receiving through the mails a visual depiction, the production of which involved the use of a minor engaging in sexually explicit conduct. Jacobson was tried in front of a jury consisting of nine women and three men on April 22, 1988. On April 26, 1988, the jury returned a verdict of guilty. The judge sentenced Jacobson to two years probation and 250 hours of community service.

II. DISCUSSION

Jacobson raises several arguments on appeal, but at the heart of each argument is the assertion that the government lacked a basis for making Jacobson a target of an undercover operation. In response, the government argues that, while his purchase of the two magazines from Electric Moon constituted legal conduct, the purchases evidenced a predisposition to purchase illegal child pornography. Our view is threefold: (1) the Electric Moon purchase was not evidence of predisposition and did not give rise to a reasonable suspicion based on articulable facts that Jacobson had committed a crime in the past or was likely to commit a crime in the future; (2) the government must have reasonable suspicion based on articulable facts before instituting an undercover operation directed at a person; and (3) since the undercover operation was improper, Jacobson’s conviction must be set aside because there was no evidence of an intervening act which cured the government's improper conduct.

The government asserts in its brief that the Electric Moon purchase was sufficient evidence of predisposition to justify the institution of an undercover operation against Jacobson. We disagree. In our view, at the time it commenced its undercover operation, the government had no evidence giving rise to a reasonable suspicion that Jacobson had committed a crime or was about to commit one. This is simply a case where a legal act took place and the government directed an extensive undercover operation at the person who committed the legal act. When an individual engages in legal conduct and no additional or extrinsic evidence exists to give rise to a reasonable suspicion of predisposition, the government may not target that individual, no matter how distasteful the lawful conduct may be. Obviously, had the government learned, prior to targeting Jacobson, that he had purchased or had expressed a desire to purchase illegal materials or that he had otherwise engaged in illegal conduct, there would have been sufficient cause to justify the decision to offer Jacobson the opportunity to purchase illegal materials through the mail.

This case is clearly distinguishable from the cases reaching the appellate level cited by the government in its brief. First, the government had received no information that Jacobson was purchasing illegal child pornography through the mails or that he was producing illegal child pornography. See United States v. Emmert, 829 F.2d 805, 807 (9th Cir.1987); United States v. Irving, 827 F.2d 390, 391 (8th Cir.1987); United States v. Lard, 734 F.2d 1290, 1292 (8th Cir.1984); United States v. Thoma, 726 F.2d 1191, 1194 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Leja, 563 F.2d 244, 245 (6th Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978). Second, Jacobson had never ordered or advertised for any illegal materials. See United States v. Rubio, 834 F.2d 442, 445 (5th Cir.1987); United States v. Goodwin, 674 F.Supp. 1211, 1213 (E.D.Va. 1987), aff'd, 854 F.2d 33 (4th Cir.1988). Third, the government did not inadvertently target Jacobson as a result of pre-exist-ing investigations. See United States v. Esch, 832 F.2d 531, 533 (10th Cir.1987), cert. denied, 485 U.S. 908, 108 S.Ct. 1084, 99 L.Ed.2d 242 (1988); United States v. Quinn, 543 F.2d 640, 643 (8th Cir. 1976). Fourth, there were no independent articula-ble facts that gave rise to the suspicion that Jacobson had committed a crime or was likely to commit a crime. See United States v. Dawson, 467 F.2d 668, 674 (8th Cir.1972), cert. denied, 410 U.S. 956, 93 S.Ct. 1427, 35 L.Ed.2d 689 (1973).

The government argues that, even if it did not have grounds for initially targeting Jacobson, his actions in response to the targeting indicated that he was predisposed to commit the crime, and his conviction should therefore be confirmed. We cannot agree. To accept this position would be to allow government agents to target entire groups of people without specific justification, hoping to uncover some individual who is predisposed to commit a crime if given enough opportunities to do so. The government must reasonably suspect that a crime has occurred or is likely to occur before targeting an individual. Evidence tending towards a reasonable suspicion obtained during an illegal targeting operation may be used to defend against a claim of entrapment only if received independent of the illegal sting operation. Cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). No such evidence exists in this case.

The government recognized that there must be limits on its power to investigate during its review of the ABSCAM sting operation. During congressional hearings, the Federal Bureau of Investigation (FBI) made clear that it had targeted only those persons who had been identified by a reliable source as predisposed to take or offer a bribe, thus giving rise to a reasonable suspicion that the targeted individuals would commit a crime if offered the opportunity to do so. Final Report of the Select Committee to Study Undercover Activities of Components of the Department of Justice, S.Rep. No. 682, 97th Cong., 2d Sess. 13 (1982).¹

In our view, reasonable suspicion based on articulable facts is a threshold limitation on the authority of government agents to target an individual for an undercover sting operation. If a particular individual’s conduct gives rise to reasonable suspicion, the government may conduct any undercover operation it so desires, as long as it does not give rise to a claim of outrageousness. United States v. Lard, 734 F.2d 1290, 1296-97 (8th Cir.1984). While the use of undercover operations is indispensible to the achievement of effective law enforcement, the potential harms of undercover operations call for the recognition that there must be some limitation on the indiscriminate use of such government targeting.²

At the time the government targeted Jacobson, it had no reason to believe that he was likely to commit an act which would violate federal obscenity laws. No evidence was subsequently obtained outside of the undercover operation. The evidence that Jacobson was predisposed to commit the crime for which he was convicted is tainted by the illegal targeting. We hold that Jacobson was entrapped as a matter of law. We therefore reverse his conviction and vacate his sentence.

1 . In each of the ABSCAM cases, reasonable suspicion does appear from the record. United States v. Jenrette, 744 F.2d 817 (D.C.Cir. 1984); United States v. Silvestri, 719 F.2d 577 (2d Cir. 1983); United States v. Ciuzio, 718 F.2d 413 (D.C.Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984); United States v. Weisz, id. (Ciuzio and Weisz were tried together); United States v. Thompson, 710 F.2d 915 (2d Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 702, 79 L.Ed.2d 167 (1984); United States v. Williams, 705 F.2d 603 (2d Cir.), cert. denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1984); United States v. Kelly, 707 F.2d 1460 (D.C.Cir.), cert. denied, 464 U.S. 908, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983); United States v. Myers, 692 F.2d 823 (2d Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983); United States v. Carpentier, 689 F.2d 21 (2d Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 957 (1983); United States v. Alexandro, 675 F.2d 34 (2d Cir.), cert. denied, 459 U.S. 835, 103 S.Ct. 78, 74 L.Ed.2d 75 (1982); United States v. Jannotti, 673 F.2d 578 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). Only three of the' cases, however, dealt specifically with the requirement of reasonable suspicion. United States v. Kelly, 707 F.2d 1460, 1471 (D.C.Cir. 1983) (without deciding whether reasonable suspicion is required, the court found that there was ample suspicion to justify targeting Kelly); United States v. Jannotti, 673 F.2d 578, 609 (3d Cir. 1982) (lack of reasonable suspicion does not offend due process); United States v. Myers, 635 F.2d 932, 941 (2d Cir.1980) (lack of reasonable suspicion does not offend due process or the speech or debate clause).

2 . These potential harms include the creation of crime, the entrapment of innocent persons, the destruction of the reputations of innocent persons, extensive fishing expeditions among innocent citizens, the creation of an air of distrust amongst colleagues and acquaintances and the subjecting of government agents to tremendous temptations, dangers and stresses.