Petition for Writ of Certiorari — Jacobson v. United States

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Supreme Court of the United States

OCTOBER TERM, 1990

KEITH JACOBSON,

Petitioner,

THE UNITED STATES OF AMERICA

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

HERBERT J. FRIEDMAN

Counsel of Record

FRIEDMAN LAW OFFICE

300 Court House Plaza

633 South 9th Street

P.O. Box 82022

Lincoln, NE 68501

(402) 476-1093

GEORGE H. MOYER, JR.

MOYER, MOYER, EGLEY,

FULLNER & WARNEMUNDE

114 West Third Street—Box C

Madison, NE 68748

(402) 454-3321

aa aaa =

WILSON - Epes PRINTING Co., INC.

- 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Where the Government knows the defendant has

committed no crime, is not planning to commit a crime

and has never engaged in any criminal activity, whether

the Government needs some cause, reason or suspicion to

make petitioner the subject of five undercover attempts

to induce the defendant to commit the offense of receiv-

ing child pornography through the mails extending over

the course of twenty seven months before the petitioner

finally purchases and accepts delivery of a single maga-

zine which has been manufactured, advertised, sold and

delivered to him by the Government?

2. Where the Government, as part of three unsuccess-

ful undercover attempts to induce the petitioner to com-

mit the offense of receiving child pornography through

the mails obtains answers to sexual attitude surveys from

the petitioner by assuring him that his responses are

confidential and the use that will be made of them is a

lawful use, whether the Government can rely on state-

ments that the respondent is interested in “preteen sex”,

“stories with a gay theme’ and “teenage sexuality” to

prove predisposition to commit a crime when, after the

surveys have heen completed by petitioner, petitioner is

finally induced in a fifth undercover operation to pur-

chase and accept delivery of a single magazine depicting

“minors in sex action fun?”

3. Where the Government has attempted and failed in

three separate undercover operations covering two years

of testing and soliciting to persuade the defendant to re-

ceive child pornography through the mails and the peti-

tioner does not qualify either under the Attorney Gen-

eral’s Guidelines for the conduct of undercover operations

or the guidelines established by the Postal Inspectors for

inclusion in the undercover operation in which petitioner

is finally ensnared, whether the petitioner has been en-

trapped as a matter of law?

(i)

4. Where the Child Protection Act of 1984, 18 U.S.C.

sec, 2252 (a)(2) and (b) provides a penalty of up to

ten years imprisonment and a $100,000.00 fine for re-

ceiving child pornography through the mails, whether the

trial court should instruct the jury in the trial of the

petitioner upon one count of violating said statute that

the Government must prove that the defendant knowingly

received child pornography through the mails knowing

such receipt to be unlawful (underlined language omitted

from instruction given) ?

5. Whether there is a distinct Fifth Amendment “out-

rageous Government conduct” defense in federal criminal

cases and if so how does it relate to entrapment?

6. If there is a distinct “outrageous government con-

duct” defense in federal criminal cases and the Govern-

ment has persistently attempted to induce the defendant

to commit a crime, fabricted fictitious criminal enter-

prises and manufactured, advertised, sold and delivered

child pornography is this Government conduct outrageous

in this case?

7. Where the defendant raises the entrapment defense,

whether the trial court should define “inducement” as

that term is used in the entrapment instruction and

where the inducement is by deception, whether the court

should also define “fraud?”

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES 000 iv

I aac ceneencenerecnncacerenecens 1

a 1

CONSTITUTIONAL AND STATUTORY PROVI-

i cectncccnstnnsenteusemeeeneseuneeecexsemecesone 1

STATEMENT OF THE CASE... 4

I 14

a cceeeeneneeen 26

(iii)

TABLE OF AUTHORITIES

CASES: Page

Butts v. United States, 273 Fed. 35 (C.A. 8, 1921). 16, 21

Casey v. United States, 276 U.S. 413, 72 L.Ed. 632,

4 eae 16

Grimm v. United States, 156 U.S. 604, 39 L.Ed.

550, 15 S.Ct. 470 (1895) Sas a 15

Hampton v. United States, 425 U.S. 484, 48 L.Ed.

2d 113, 96 S.Ct. 1646 (1976) 0. ‘nani 18, 19, 20

Newman v. United States, 279 Fed. 131 (C.A. 4,

1925) .......... ER aca NEALE See ICR CENT ne ey RRC 21

Sherman v. United States, 356 U.S. 369, 2 L.Ed.2d

848, 78 S.Ct. 819 (1968) .....................--......... 15, 21, 22

Sorrells v. United States, 287 U.S. 435, 77 L.Ed.

413, 53 S.Ct. 210, 86 A.L.R. 249 (1932) 19, 21, 22, 24

Terry v. Ohio, 392 U.S. 1, 27, 20 L.Ed.2d 889, 88

reel een

Turner v. United States, 393 U.S. 398, 24 L.Ed.2d

% | ££ FF ener

United States v. Dawson, 467 F.2d 668 (CA. 8,

| ae ae SOR eee

United States v. Dion, 762 F.2d 674 (C.A. 8,

1985) ........ ... SE SN eel DEH See aE AI

United States v. Driscoll, 852 F.2d 84 (C.A. 3,

_ 1988) ER EES ec ese a I ae kd Oe a

1987) SAD APE eR gee NT ES eS R

United States v. Hunt, 749 F.2d 1078 (C.A. 4,

1984)

United States | v. , Jecobeon, 889 F.2d 1549 eons

United States v. Jacobson, 893 F.2d 467 (C.A. 8,

_1990) Sas EES St ae st

I hiniicaciin sepia 7 bret aa aca

United States v. Janotti, 673 F.2d 578 (C. A. 3,

EEE a RI SEBS, ne

United States v. Lard, 743 F.2d 674 (C.A. 8,

a aA SY al beanie .

United States v. Luttrell, 889 F.2d 806 (C.A. 9,

1989) | a eras se

United States v. Mitchell, 915 F.2d 521 (C.A. 9,

REESE AER RS BES pal AN ee =

. 15,17

11,15

1,14

TABLE OF AUTHORITIES—Continued

Page

United States v. Russell, 411 U.S. 423, 36 L.Ed.2d

366, 93 S.Ct. 1637 (1978) .............. Ronee 18, 20, 22, 23

United States v. Thoma, 726 Fed. 1191 (C.A. 7,

I as ane ee eee eee en ee eee 15

United States v. Wiegand, 812 F.2d 1239 (C.A. 9,

pt RTE a ke Pee ES apa ne le OB 15

Woo Wai v. United States, 293 Fed. 412 (C.A. 9,

1915) we tad KAM chats ieee,

OTHER AUTHORITIES:

Constitution, Fourth Amendment... 3

Constitution, Fifth Amendment... 3

“Law Enforcement Undercover Activities of Com-

ponents of the Department of Justice,” U.S.

Senate, 97th Congress, 2d Session 86, 101

(1982) . EEE ee 10

Title 18 U.S.C. See. 2252 (1986) ciciiidamesieies ae

Title 18 U.S.C. Sec. 2256 (1986)... 1,6

IN THE

Siprenw Court of the Anited States

OCTOBER TERM, 1990

No. —

KEITH JACORSON,

. Petitioner,

THE UNITED STATES OF AMERICA

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The Eighth Circuit’s Panel Opinion is reported in 893

F.2d 999 (1990). The Eighth Circuit's Opinion on re-

hearing en bane is reported at 916 F.2d 467 (1990).

JURISDICTION

The judgment petitioner seeks to have the court review

was entered on October 15, 1990. There is no applicable

order for rehearing. No order has been entered extending

the time in which to file the petition for writ of cer-

tiorari. Rule Il‘e) (iii), Rules of the Supreme Court is

not applicable. The jurisdiction of this Court is invoked

under 18 U.S.C. see. 1254 (1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Title 18 U.S.C. see 2252 (1986):

‘a’ Any person who——

(1) knowingly transports or ships in interstate

or foreign commerce or mails, any visual dipic-

tion, if—

(A) the producing of such visual depiction

involves the use of a minor engaging in sex-

ually expicit conduct; and

(B) such visual depiction is of such con-

duct; or

(2) knowingly receives, or distributes any vis-

ual depiction that has been transported or

shipped in interstate or foreign commerce or

mailed or knowingly reproduces any visual de-

piction for distribution in interstate or foreign

commerce by any means including through the

mails; if

(A) the producing of such visual depiction

involves the use of a minor engaging in sex-

ually explicit conduct ; and

(B) such visual depiction is of such conduct;

shall be punished as provided in subsection (b)

of this section.

(b) Any individual who violates this section

shall be fined not more than $100,000, or im-

prisoned no more than 10 years, or both, but,

if such an individual has a prior conviction un-

der this section, such individual shall be fined not

more than $200,000, or imprisoned not less than

five years nor more than 15 years, or both. Any

organization which violates this section shall be

fined not more than $250,000.

Title 18 U.S.C. sec. 2256 (1986):

For the purposes of this chapter, the term—

(1) “minor” means any person under the age of

eighteen years;

(2) “sexually explicit conduct” means actual or

simulated—

(A) sexual intercourse, including genital-

genital, oral-genital, anal-genital, or oral-

anal, whether between persons of the same

or opposite sex;

(B) bestiality;

(D) sadistic or masochistic abuse (for the

purpose of sexual stimulation) ; or

(FE) lascivious exhibition of the genitals or

pubic area of any person;

(3) “producing” means producing, directing,

manufacturing, issuing, publishing, or advertis-

ing;

(4) “organization” means a person other than

the individual.

(5) “visual depiction” includes undeveloped film

or videotape.

Fourth Amendment to the Constitution of the United

States.

The right of people to be secure in their persons,

houses, papers, and effects against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath and

affirr cion, and particularly describing the place to be

se. ed, and the persons or things to be seized.

ifth Amendment to the Constitution of the United

States. °

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in ac-

tual service time of War or public danger; nor shall any

person be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or prop-

erty, without due process of law; nor shall private prop-

erty be taken for public use, without just compensation.

STATEMENT OF THE CASE

BASIS FOR FEDERAL JURISDICTION: | Petitioner

was indicted by a Federal Grand Jury and tried in the

United States District Court for the District of Nebraska

at Omaha on one count of violating Title 18 U.S.C. see.

9252 (2), receiving child pornography that had been

mailed.

STATEMENT OF MATERIAL FACTS: Keith M.

Jacobson is 57 years old. He was born in Newman Grove,

Nebraska, October 20, 1930 to a farm family. He gradu-

ated from Newman Grove High School in 1949 and helped

his father farm for a year and half (T407).

He joined the Navy in early 1951 and saw sea duty

aboard the U.S.S. Iowa and the U.S.S. Gerke. While

aboard the Gerke he saw action in Won San Harbor dur-

ing the Korean War (T408). He was honorably dis-

charged on March 11, 1955 (T409). In the fall of 1955,

he enrolled at Nebraska Wesleyan University under the

G.I. Bill majoring in business administration (T410).

In 1958, Mr. Jacobson was convicted of ¢viving under

the influence of alcoholic liquor in Lancaster County, left

school and joined the Army (T411). However, after his

retirement from the Army, he enrolled in an off-campus

degree completion program at Upper Iowa University

and obtained a bachelor of arts degree in public admin-

istration (T411). Driving under the influence was the

only offense he had ever committed prior to his indict-

ment in this case (T422).

While in the Army, petitioner served in Korea twice

(T412, 414), Italy (T4141), Germany (T7416), and Viet

Nam (7T415!. He became an information specialist which

involved him in newspaper publishing, news writing,

troop indoctrination, and public relations (T4153). He

held the rank of Staff Sergeant ‘T413). While in Viet

Nam, he was assigned to the press center at Da Nang

where he came under fire (T416). He was awarded the

Bronze Star for his service in Viet Nam (T417) and also

received the Army Commendation Medal.

He retired from the service at Fort Riley, Kansas in

1974 (T418). In 1975, he moved back to Newman Grove

to be closer to his father who had suffered a stroke in

1972 (T418). In 1978, he moved to his family’s farm a

half mile east of Newman Grove where he raises a few

head of livestock (T419).

After moving back to Newman Grove, Jacobson worked

for a shopper’s guide in a nearby town for a time and

then accepted a job driving a school bus for the Newman

Grove school district. In 1979, he was made supervisor

which included the responsibility for the safety and re-

pair of the four buses and three vans the school district

employed (T421). Petitioner received a certificate on

May 20, 1986, for his faithful service (T422).

Six witnesses from Newman Grove testified that peti-

tioner had an excellant reputation in the community as a

law abiding and truthful citizen (T274-316).

The petitioner described his sexual preference as “bi-

sexual’. He became interested in reading about gay is-

sues, lesbian issues, health issues and gay legislative mat-

ters after he retired from the Army. He denied, however,

that he was a practicing homosexual or ever had been

(T7423).

On February 4, 1984, petitioner ordered two maga-

zines, Bare Boys I and Bare Boys II (E18A, 18B), and

a brochure from a Dennis Odom doing business as Elec-

tric Moon in San Diego, California (T7). On May 11,

1984, the Government executed a search warrant on the

Gdom establishment and found petitioner’s name on

Odom’s mailing list together with copies of the magazines

and a receipt showing what Odom had mailed to Jacobson

(T7). The two magazines were nudist magazines depict-

ing boys in their teens and early twenties in outdoor set-

tings. Dr. Richard Dienspier, a psychologist and profes-

sor on human sexuality at the University of Nebraska

testified that the magazines were not child pornography

because the photographs did not show sexual intercourse,

bestiality, masturbation or lascivious exhibition of geni-

tals as mentioned by 18 U.S.C. sec. 2256 (T397). The

Government did not challenge this testimony. The Gov-

ernment stipulated that petitioner's receipt of Bare Boys

I and IT was not a violation of Federal law ‘(T8). The

brochure (E17) was a newsletter which indicated stores

in the United States and Europe which sold sexually

oriented material. The Government offered no evidence

that petitioner had ever ordered or received any items

from these stores and petitioner denied doing so (T425).

Due to the fact that his name was on Odom’s mailing

list, the Government included Jacobson in a Postal In-

spector’s undercover operation called The American

Hedonist Society. Petitioner’s name and address was

forwarded to Stuart O. Patten, a Postal Inspector and

prohibited mailing specialist stationed at Omaha, Ne-

braska (T165!'. He sent Jacobson a sexual attitude sur-

vey and a membership application for the Society (T166,

E7', which was an association of postal inspectors for

the central region based in Madison, Wisconsin (T166).

The society was, “a sting operaiton to try to get people

to join it and perhaps trade through it” (T166). The

format called for “testing” of the subject by means of

the survey and a newsletter which was mailed four times

a vear to subjects who joined the society. The newsletter

came for as long as the Postal Inspectors wished to send

it (T171). The last paragraph of the sexual attitude sur-

vey states in capital letters:

I understand that the information which I have pro-

vided shall be held in strict confidence by the Society

and all information received by me from the Society

shall be held in strict confidence by me.

On February 21, 1985, Jacobson filled out the survey,

sent his membership fee and thereafter received the news-

letter. The Government offered no evidence that Jacobson

ever traded anvthing with the Society or through it, let

alone child pornography.

The Government, however, perservered. Patten re-

tired March 3, 1985 (T710). In January, 1986, one

Calvin Comfort ‘T176) was assigned to Patten’s position.

Comfort had heen a letter carrier for three vears, with

two weeks of training in the restricted mailing of child

pornography (T329). Although two postal inspectors

who had preceeded Comfort (T329:1) had showed no in-

terest in petitioner, on May 27, 1986 (T335) Comfort

initiated another undercover scheme involving two more

postal service inventions. Heartland Institute for a New

Tomorrow and Midlands Data Research (T333).

According to its contact letter, Midlands Data Research

was “a small, old, established firm in Lincoln, Nebraska”

conducting “consumer surveys on a variety of subjects”

(E8). The subject of the “consumer survey” was another

sexual preference and attitude test. Petitioner did not

complete the survey (340:7), but sent back the contact

letter on Mav 31, 1986, with a note stating, “Please feel

free to send me more information. I am interested in

teenage sexuality”.

Comfort tried again. On July 28, 1986, Comfort, posing

as “Jean Daniels”, director Heartland Institute for a New

Tomorrow, wrote petitioner explaining that Heartland

was a lobbying organization seeking liberalization of sex-

ually repressive legislation and importuning petitioner to

complete and return the sexual survey (T369). On Au-

gust 20, 1986, Jacobson did (E9, 9A). Comfort, still

posing as Jean Daniels, then sent petitioner a list of five

names of persons with supposedly similar sexual interest,

all Comfort psudonyms, with whom Jacobson could cor-

respond (T3417).

Petitioner did not (T342). Comfort pushed harder.

Posing as “Carl Long” (T342), he wrote to the petitioner

on September 17, 1986 (E23). His Carl Long identity

was to “mirror” Jacobson, to become like him in order to

gain more information ‘T342), and, if petitioner was

inclined to do so, invite him to send child pornography

through the mails (T343). Comfort wrote petitioner

three times and petitioner responded twice (T344), then

broke off the “Carl Long’ correspondence. On one of

these occasions, September 29, 1988, Jacobson sent Com-

fort a newspaper, “The New York Native” (E14A),

which contained homosexual articles. The Government

made no claim that this violated any laws.

Comfort did not institute a “mail cover’ upon peti-

tioner’s mail (T348). This device allows a law enforce-

ment agency to watch the mail coming to an individual

for a period of thirty days to see who is sending mail to

the petitioner (T248). Comfort was familiar with at

least some of the persons who were sending child porno-

graphy (T7350). If petitioner had been receiving any, it

would be fair to infer that a “mail cover’? would have

disclosed that fact.

By February of 1987, petitioner had been the target of

three sting operations in which he had had an opportu-

nity to violate the law each time he received a letter from

“Carl Long” or a newsletter from the Hedonist Society.

Jacobson had given postal authorities no reasor to believe

he had violated the law or was thinking about violating

it, let alone that he was engaged in a course of criminal!

conduct.

In 1986, one Ray Mack, the supervisor of a prohibited

mails team of Postal Inspectors at Newark, New Jersey

(T91) invented yet another undercover operation which,

in 1987, was elevated to national scope and named “Proj-

ect Looking Glass” (T94).

The operation was commenced by the Postal Inspection

Service to target suspected pedophiles and others who

receive child pornography through the mails. United

States v. Mitchell, 915 F.2d 521, (C.A. 9, 1990). On the

sexual attitude survey Jacobson completed for “The

American Hedonist Society,” he stated that he was “op-

posed to pedophilia” (E7}.

The Postal Inspection Service’s unrelenting and _ in-

genious invention of child pornography undercover opera-

tions is both remarkable and curious. According to the

Government, one Catherine Stubblefield Wilson controlled

about eighty percent of the United States Market for

child pornography. According to Postal Inspector William

Anderson, the American market for mail order child

pornography “virtually dried up overnight” after Wilson

was arrested in 1982 and her mailing list, consisting of

many thousands of names and addresses, was distributed

to postal inspectors nationwide. United States v. Mitchell,

supra, footnote 5, 915 F.2d at 525.

The Justice Department concluded that subjects would

be included in Project Looking Glass if their names had

been found on a mailing list that had been seized by a

Postal Inspector in the last seven or eight years and they

had responded to at least one regional “sting” testing

program in the last three years (T96) (T97). Mack

described testing differently than Comfort, stating that

it was a wav to contact individuals who had committed

a criminal offense or were in the act of committing a

criminal offense (T92). By this admeasurement, Jacob-

son did net qualify for testing, and therefore, Project

Looking Glass. Mack also stated that subjects were in-

cluded only if the individual’s name had come up from

two independent sources (96:25). Petitioner did not

qualify under this criteria either because the Hedonist

Society and Heartland Surveys would not have been sent

to petitioner but for his order from a single independent

source, Electrie Moon (T346).'

'To get out of a testing prorcram one can simply refuse to re-

spond (T2379). Or, a subject can send something saying he does not

Furthermore, the United States Attorney General’s

Guidelines on FBI Undercover operations 16 (Dec. 21,

1980) reprinted in Law Enforcement Undercover Activi-

ties: Hearings before the Select Committee to Study Law

Enforcement Undercover Activities of Components of the

Department of Justice, U.S. Senate, 97th Congress, 2d

Sess. 86, 101 (1982) states that undercover operations

offering an inducement to illegal activities are not to be

approved unless:

(a) there is a reasonable indication, based on infor-

mation developed through informants or other means,

that the subject is engaging, has engaged, or is likely

to engage in illegal activity.

(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.

William H. Webster, then director of the FBI testified

during the Senate Select Committee hearings:

One of the basic standards for initiating an opera-

tion or for making a change in direction or a change

in focus, which is one of the sore points we have

observed in these various operations, currently ap-

pears in the Attorney General’s Guidelines on Crim-

inal Investigations, and that is that there must be

facts and circumstances that reasonably indicate

that a Federal criminal violation of the type to be

investigated has occurred, is occurring or is likely to

occur. In other words, a reasonable cause provision.

(Senate Hearings, supra, at 1055.) I have no

problem with requiring an articulation of the rea-

sons. I think we are doing that now, and we will

want to receive anything more from the particular front oryaniza-

tion doing the testing. However, being dropped from one sting

operation would not mean that the subject would be dropped from

all. That would require “legal action” (T380). Of course, to insti-

tute that a subject would need to know he has a subject.

certainly do it in the future.... (Senate Hearings

at 1055.)

These same Attorney General’s Guidelines attempt to

minimize the possibility of overly persistant solicitation

by limiting thé initial duration of an undercover opera-

tion to six months. Gersham, Abscam, The Judiciary and

the Ethies of Entrapment, 91 Yale LJ. 1565 n.100

(1982) quoted in United States v. Dion, 762 F.2d 674,

686 (C.A.8, 1985).

Therefore, before he was included in Project Looking

Glass, the Government knew what Jacobson bought from

Electric Moon three years earlier. The Government knew

it was not child pornography. The Government also knew

that Jacobson had rebuffed numerous attempts to induce

him to send or receive child pornography offered through

the newsletter of The American Hedonist Society and the

“Carl Long” correspondence. The Government knew that

petitioner was opposed to pedophilia. The Government

knew that petitioner did not fit the Attorney General’s

guidelines and the Postal Inspection Service’s criteria for

inclusion in Project Looking Glass. The Government

knew Jacobson had been a target of undercover opera-

tions for at least eighteen months longer than the Attor-

ney General’s Guidelines permit.

Calvin Comfort knew that petitioner was “interested

in vwenage sexuality,” and “stories with a gay theme”

(E7)}. Comfort recognized a weakness which he could

exploit.

A contact letter (E1) ostensibly from the “Far East-

ern Trading Co. Ltd.” was sent to petitioner March 23,

1987. The letter states, “All material that you order

from your (sic) company will be sent to you through our

branch office in the Virgin Islands. After consultations

with American solicitors, we have been advised that once

we have posted our material through your system, it can-

not be opened for any inspection without a court order’.

Petitioner completed a coupon asking for more informa-

tion and was sent a catalog (E2) from which he ordered

“Boys Who Love Boys”, the material he is charged by the

indictment with receiving. The catalog described the

magazine as, “11 year old and 14 year old boys get it on

in every way possible. Oral, anal sex and heavy mastur-

bation. If you love boys you will be delighted with this”.

Mack prepared and copied it on post office word proces-

sors (T106).

“Boys Who Love Boys”, itself, is not a magazine but

a copy of a magazine that had been seized by customs.

The original was produced in Denmark (T157). The

Postal Inspectors did not have enough seized material

to fill all orders so they produced copies on a postal serv-

ice copying machine in Washington D.C. (T143, T144).

Mack then mailed the photocopied magazine to Comfort

(T1112).

At the same time, the Customs Service had organized its

own sting, “Operation Borderline” (T26). Its purpose

was to “target people who were involved in alleged im-

porting of child pornography” (T26). Obviously, Com-

fort had no evidence that Jacobson was doing this.

Canadian officials opened a post office box in Hull,

Quebec Canada, under the name of Produit Outaouis

(T27). Persons were included if their names appeared

on a source document in another agency’s files (T29).

Jacobson’s name was included (T29) from two sources,

one of the test programs previously conducted by the

Postal Service and from the Electric Moon investigation

(T30).

Customs printed a brochure in French and English

listing available materials for sale (T31'. The materials

were photos taken from within the pages of sexually ex-

plicit magazines depicting children ‘(T32) printed spe-

cially for the Customs Service by Kodak in Chicago (T48).

Jacobsen ordered a set of photographs entitled Piccolo

(T37). The Piccolo set was not delivered ‘T52).

On June 16, 1987, Comfort made a controlled delivery

of “Boys Who Love Boys” to Jacobson (T219). A “con-

trolled delivery” means that he took the envelope contain-

ing the magazine to Newman Grove, placed it on a desk in

the post office where he could see it, had the postmaster

put a notice to call at the window in the petitioner’s box

and, when he responded to the notice, observed the post-

master hand petitioner the envelope (T219-228).

Comfort then called a waiting postal inspector in Omeha

and obtained a search warrant for Jacobson’s residence

(T229). Comfort, Madison County Sheriff Vern Hjorth

and three Customs Agents then went to Jacobson’s home

to execute the warrant (T230). At least three of them

were armed (T435).

Jacobson was returning from his morning coffee (T431).

Two cars followed him into his driveway and parked so

that he was blocked (T434). Comfort approached peti-

tioner, exhibited credentials and the search warrant and

said, “Let’s go in the house”. (T435). The search party

and petitioner entered petitioner’s home and spent the

next hour and forty minutes going through it ‘(T230).

The only trial evidence produced by the search were the

two lawfully obtained child nudist magazines which the

Government had known since the raid on Electric Moon

in 1984 that the petitioner possessed and, of course,

“Boys Who Love Boys,” which the Government had just

given him,

Petitioner was indicted on September 14, 1987, on one

count of receiving a visual depiction the production of

which involved the use of a minor engaging in sexually

explicit conduct (CR4) which magazine had been mailed.

Petitioner was tried to a jury consisting of nine women

and three men beginning April 22, 1988. The jury re-

turned a verdict of guilty on April 26, 1988 (C.R. 113).

Sentence was passed June 30, 1988.

Respondent appealed his conviction to the Eighth Cir-

cuit Court of Appeals. On January 12, 1990, a panel of

the Fighth Cireuit Court of Appeals reversed the respond-

ent’s conviction holding that the petitioner had been en-

trapped as a matter of law because the Government “did

not have a reasonable suspicion based upon articulable

facts” that Jacobson was predisposed to commit the crime

with which he was charged, lU'niled States v. Jacobson,

893 F.2d 999 (C.A. 8, 1990). Upon the petition of the

United States Attorney for the District of Nebraska and

his suggestion for rehearing en bane, the Eighth Circuit

granted rehearing en bane. (889 F.2d 1549).

Upon rehearing en bane, the Eighth Circuit Court of

Appeals reinstated petitioners conviction, holding that no

reasonable suspicion was necessary because “Jacobson had

no constitutional right to be free of investigation.” United

States v. Jacobson, 916 F.2d 467 (C.A. 8, 1990).

ARGUMENT

1. In the District Court and in the Circuit Court, peti-

tioner contended that evidence of predisposition was evi-

dence that the defendant had committed a crime, was

about to commit a crime or was engaged in a course of

criminal conduct.

The Government offered no such evidence. Instead, the

Government took scattered answers from the sexual at-

titude surveys obtained hefore petitioner’s inclusion in

Project Looking Glass, Bare Boys I and II and the Car!

Long correspondence and claimed that these items dem-

onstrated predisposition.

Petitioner urged that this was only proof of a status,

i.e., petitioner’s interest in “stories with a gay theme.”

Petitioner pointed out that:

The crime punished by the statute against the sex-

ua! exploitation of children, however, does not consist

in the cravings of the audience. Private fantasies

are not within the statute’s ambit. The crime is the

offense against the child... . United States v. Wie-

gand, 812 F.2d 1239 (CLA. 9, 1987).

Petitioner argued that prior Eighth Cireuit cases had

always required the Government to show a “readiness

and willingness to break the law,” United States v.

Dawson, 467 F.2d 668 (CLA. 8, 1978) to prove predis-

position and that this was consistent with cases from the

other circuits. Cf. United States v. Thoma, 726 Fed.

1191 (C.A.7, 1984); United States v. Esch, 832 F.2d

551 6C.A.10, 1987). Petitioner’s contention was bottomed

on the languave of Chief Justice Warren in Sherman +.

I’nited States, 256 U.S. 369, 2 L.Ed.2d 848, 853, 78 S.Ct.

(1958) that the Government was required to offer more

than evidence of “the weakness of an innocent party” to

overcome the defense of entrapment. Since there was no

objective evidence from which rational minds could con-

clude that defendant had committed a crime, was com-

mitting a crime or was likely to commit one when peti-

tioner was made the subject of Project Looking Glass,

petitioner alleged that he was entitled to summary ac-

quital under such prior Eighth Circuit cases as [’nited

States v. Lard, 743 F.2d 674 (C.A. 8, 1978) and United

States v. Dion, supra.

Judge Heaney, who wrote the panel opinion, implicitly

accepted the petitioner's view, requiring the government

to have a “reasonable suspicion based upon articulable

facts that Jacobson had committed a similar crime in the

past or was likely to commit such a crime in the future.”

This rule quite clearly tracks Department of Justice

Guidelines for undercover operations. Moreover it is

clearly presaged by other Supreme Court and Circuit

Court opinions.

In Grimm v. United States, 156 U.S. 604, 39 L.Ed. 559,

15 S.Ct. 470 11895), one of the Decoy Letter Cases, the

court affirmed a conviction for dispensing pornography

through the mails without specifically mentioning an en-

trapment defense. The court held that Grimm’s convic-

tion could stand even though the contraband was solicited

by an undercover Government agent because the agent

“suspected that the defendant was engaged in a business

offensive to good morals, sought information directly from

him ‘and it) does not appear that it was the purpose of

the post office inspectors to induce or solicit the commis-

sion of a crime, but it was to ascertain whether the de-

fendant was engaged in an unlawful business.” /d., 546

U.S. 610.

The Ninth Circuit court overturned a conviction of

illegally importing Chinese in Woo Wai v. United States,

223 Fed. 412 (C.A. 9, 1915). The court’s conclusion

focused on the absence of a reasonable suspicion to con-

clude that petitioner was engaged in ongoing criminal

activity:

.... here is no evidence that prior to the time when

the detectives first approached Woo Wai, any of the

defendants had ever been engaged in the unlawful

importation of Chinese, or had ever committed or

thought of committing any offense against the im-

migration laws.

The same state of the record led the Eighth Circuit to

overturn a conviction for selling morphine in Butts v.

United States, 279 Fed. 38, 18 A.L.R. 143 (C.A. 8,

1921), where it was said:

There was ample, if not conclusive evidence .... that

.... defendant had never committed any such offense

as the officers of the government arrested and prose-

cuted him for prior to the time when they induced

him to do the acts disclosed by his testimony. There

is no evidence that he had ever contemplated, much

less intended to sell any morphine. He had never

done so.

In Casey v. United States, 276 U.S. 413, 72 L.Ed. 632,

48 S.Ct. 373 (1928), overruled on the grounds, Turner

v. United States, 393 U.S. 398, 24 L.Ed.2d 610, 90 S.Ct.

642 (1970), the Court refused to consider an entrap-

ment defense because it had not been properly raised.

However, it noted that had the defense been preserved, it

would probably have failed because:

.... there was probable cause to believe Casey was

a habitual drug user who had supplied drugs to in-

mates on prior occasions (and because he! was in no

way induced to commit the crime beyond the simple

request of Cicero to which he seems to have acceded

without hesitation and as a matter of course. (/d.

at 419).

In United States v. Dawson, supra, the Eighth Circuit

itself said that the Government would need to suspect a

crime was underway before targeting a subject for

investigation.

Two recent opinions also indicate that the Circuit

Courts retain a concern over the manner in which sub-

jects are selected for inclusion in Government undercover

operations. United States v. Hunt, 749 F.2d 1078

(C.A. 4, 1984) affirmed the conviction of a state court

judge on bribery charges but the court condemned indis-

criminate Government fishing expeditions and warned

that the Government must have a reasonable basis in fact

before focusing an undercover operation on a subject.

So did the Ninth Circuit on United States v. Luttrell,

889 F.2d 806 (C.A. 9, 1989) rehearing en bane granted

906 F.2d 1384 (1990):

We think police offiers violate constitutional norms,

when without reasoned grounds, they approach ap-

parently innocent individuals and provide them with

a specific opportunity to engage in criminal conduct.

... The principle that persons who are scrupulously

conforming their conduct te the requirements if the

law should not be made the objects of highly intru-

sive, random police investigations is an important

ingredient of our liberty. We see substantial mis-

chief in any pattern of law enforcement that arbi-

trarily targets for intrusion the lives of individuals

who, to all reasonable appearances are minding their

own business.

2. However, on rehearing before the Eighth Circuit

sitting en banc, Judge Heaney’s cautious approach was

detonated by an opinion with explosive constitutional

potential. The heart of the Eighth Circuit’s en banc

opinion begins:

In this circuit we review the government’s involve-

ment in undercover investigations under due process

principles. .... (Citations omitted).

Due process limitations ‘come into play only when

the government activity in question violates some pro-

tected right of the defendant.’ Hampton v. United

States, 425 U.S. 484, 490 (1976) (emphasis omitted).

The language within the quotation marks is from the

plurality opinion in Hampton v. United States, 425 U.S.

484, 48 L.Ed.2d 113, 96 S.Ct. 1646 (1976). In Hampton,

petitioner admitted he was predisposed to sell heroin to

an undercover DEA agent.

At his trial, hoy,ever, Hampton testified that Hutton,

a DEA informer, had proposed they sell counterfeit

heroin to gullible acquaintances. He contended that

Hutton had furnished him the supposedly counterfeit

drug, which turned out to be the real thing. He requested

an entrapment instruction which stated in part:

If you find that the defendant’s sales of narcotics

were sales of narcotics supplied to him by an in-

former in the employ of or acting on behalf of the

government, then you must acquit the defendant be-

cause the law as a matter of policy for bids his con-

viction in such a case.

The instruction was refused, and the Eighth Circuit

affirmed, relying on United States v. Russell, 411 U.S.

423, 36 L.Ed.2d 366, 93 S.Ct. 1637 (1973).

—

On certiorari to the Eighth Circuit, the Supreme Court

affirmed. Three judges were of the opinion that:

(In Russell) We ruled out the possibility that the

defense of entrapment could ever be based upon gov-

ernmental misconduct in a case, such as this one,

where the predisposition of the defendant to commit

the crime was established... .

The remedy of the criminal defendant with respect

to the acts of Government agents, which, far from

being resisted, are encouraged by him, is solely in

the defense of entrapment. As _ noted, petitioner’s

conceded predisposition (emphasis supplied) rendered

this defense unavailable to him.

To sustain petitioner’s contention here would run di-

rectly contrary to our statement in Russell that the

defense is not intended “to give the federal judiciary

a ‘chancellor’s foot’ veto over law enforcement prac-

tices of which it did not approve. The execution of

the federal laws under our Constitution is confided

primarily to the Executive Branch of the Government,

subject to applicable constitutional and statutory lim-

itations and to judicially fashioned rules to enforce

those limitations” (emphasis supplied).

The limitations of the Due Process Clause of the

Fifth Amendment come into play only when the Gov-

ernment Activity in question violates some protected

right of the defendant. (emphasis in opinion). Here,

as we have noted, the police, Goverument informer,

and the defendant acted in concert with one another.

If the result of the governmental activity is “to im-

plant in the mind of an innocent person the disposi-

tion to commit the alleged offense and induce its

commission ...,” Sorrells, at 442, 77 L.Ed. 413, 53

S.Ct. 210, 86 A.L.R. 249, the defendant is protected

by the defense of entrapment.

Two judges concurring in the result were of the opin-

ion that neither the difficulties which attend the notion

that due process of law can be embodied in fixed rules

nor the practicalities of combating the narcotics traffic

required the adoption of a rule which would never pre-

vent the conviction of a predisposed petitioner. The con-

curring justices also said:

The plurality’s use of the ‘chancellor’s foot’ passage

from Russell, ante at 490, 48 L.Ed.2d 119, may sug-

gest that it would also forclose reliance on our su-

pervising power to bar conviction of a predisposed

defendant because of outrageous police conduct.

Again, I do not understand Russell to have gone so

far. There we indicted only that we should be ex-

tremely reluctant to invoke the supervising power in

cases of this kind because that power does not give

the “federal judiciary a ‘chancellor’s foot’ veto over

law enforcement practices of which it does not ap-

prove.”

Three other justices dissented, taking the view first,

that the-focus of the entrapment defense “is not on the

properties and predisposition of a specific defendant, but

on ‘whether the police conduct revealed in the particular

case falls below standards to which common feelings re-

spond, for the proper use of Governmental power.’ . . .”

Russell, 36 L.Ed.2d at 378; and second, that even taking

a “subjective” approach to the defense of entrapment,

“the police activity in this case was beyond permissible

limits.” Hampton, 48 L.Ed.2d at 123.

Since Hampton, the Circuit Courts have adopted a de-

fense of “outrageous government conduct” distinct from

entrapment taken from the concurrence and based upon

the Fifth Amendment and the supervisory power. Anno

97 A.L.R. Fed. 273 (1990). However, “a delineation of

the defense, and in particular, its relationship to the

entrapment defense, remains, ‘at best elusive’” United

States v. Driscoll, 852 F.2d 84 (C.A. 3rd, 1988) quoting

T’nited States v. Janotli, 673 F.2d 578 (C.A. 3rd, 1982).

This case clearly demonstrates the difficulty which

lower courts have with the relationship of a due process

defense to entrapment. In the first entrapment case con-

sidered by the Court, Sorrells v. United States, supra,

the Court declared that the entrapment defense was

available to the accused not on constitutional grounds

but as a matter of statutory construction. Sorrells re-

jected Cireuit Court opinions which placed the grounds

of entrapment on “public policy,” eg. Butts v. United

States, 273 Fed. 35 (C.A. 8, 1921) and estoppel e.g.

Newman v. United States, 279 Fed. 131 (C.A. 4, 1925).

The majority opinion by Chief Justice Hughes states:

Literal interpretation of statutes at the expense of

the reason of the law and producing absurd conse-

quences or flagrant injustice has frequently been con-

demned. ... We think that this established principle

of construction is applicable here. We are unable to

conclude that it was the intention of Congress in en-

acting this statute that its processes of detection and

enforcement would be abused by the instigation by

government officials of an act on the part of persons

otherwise innocent in order to link them to its com-

mission and punish them. We are not forced by the

letter to do violence to the spirit and purpose of this

statute. This, we think, has been the underlying and

controlling thought in the suggestions in judicial opin-

ions that the Government in such a case is estopped to

prosecute or that the courts should bar prosecution.

If the requirements of the highest public policy in

the maintenance of the integrity of administration

would preclude the enforcement of the statute in such

circumstances as are present here, the same consid-

erations justify the conclusion that the case lies out-

side the purview of the Act and that its general

words should not be construed to demand a proceed-

ing at once ‘inconsistent with that policy and abhor-

rent to the sense of justice.’ This view does not

derogate from the authority of the court to deal ap-

propriately with abuses of its processes and it ob-

viates the objection to the exercise by the court of a

dispensing power in forbidding the prosecution of one

who is charged with conduct assumed to fall within

the statute.

Mr. Justice Roberts, concurring, thought that the judg-

ment should be reversed with instructions to quash the

indictment. In his view, the issue was always one of law

for the court. He said:

The applicable principle is that courts must be closed

to the trial of a crime instigated by the government’s

own agents.

In Sherman v. United States, supra, the Court held

that the facts established an entrapment of the petitioner

as a matter of law. The majority opinion notes that it

had been suggested that, “we should reassess the doctrine

of entrapment according to principles announced in the

separate opinion of Mr. Justice Roberts in Sorrells v.

United States,...” 2 L.Ed 853, 854. The Court declined

this approach:

Not only was this rejected by the Court in Sorrells,

but where the issue has been presented to them, the

Courts. of Appeal have since Sorrells unanimously

concluded that unless it can be decided as a matter

of law, the issue of whether a defendant has been

entrapped is for the jury. ... (/d. at 854).

In United States v. Russell, 411 U.S. 423, 36 L.Ed.2d

366, 93 S.Ct. 1637 (1973), the Court was again asked to

reconsider the theory of entrapment. /d. at 36 L.Ed.2d

372. Like Hampton, Russell admitted that he was pre-

disposed and that traditional entrapment, where the Gov-

ernment creates the criminal enterprise, “plays on the

weakness of an innocent party and beguiles him into com-

mitting crimes which he otherwise would not have at-

temped,” (Sherman at 2 L.Ed.2d 853) did not apply.

Instead, he argued that the level of the Government in-

volvement in the manufacture of methamphetamine was

so high that a criminal prosecution for the drug’s manu-

facture violated the fundamental principles of due proc-

ess. He claimed that the same factors which led the Court

to apply the exclusionary rule to illegal searches and sei-

zures and confessions should bar his conviction.

The Court rejected this argument. Mr. Justice Rehn-

quist, writing for the majority, pointed out that the situ-

ations which gave rise to the exclusionary rule were

grounded on the Government’s failure to observe its own

laws. He noted that the Government agent who fur-

nished some of the pheyl-2-propanone which Russell used

to manufacture methamphetamine “violated no independ-

ent constitutional right of the respondent(,) ...Nor...

any federal statute or rule or committed any crime in

infiltrating the respondent’s drug enterprise.” Jd. at 36

L.Ed.2d 373.

Russell also asked the Court, “‘as an alternative to his

constitutional argument that we broaden the nonconstitu-

tional defense of entrapment... .” Jd. at 36 L.Ed.2d 375.

The Court said:

We are content to leave the matter where it was left

by the court in Sherman.

‘The function of law enforcement is the prevention

of crime and the apprehension of criminals. Mani-

festly, that function does not include the manufac-

turing of crime. Criminal activity is such that stealth

and strategy are necessary weapons in the arsenal of

the police officer. However, “A different question is

presented when the criminal design originates with

the officials of the Government and they implant in

the mind of an innocent person the disposition to

commit the alleged offense and induce its commis-

sion in order that they may prosecute.” ’

Thus, the Eighth Circuit’s en bane opinion steps off

smartly on the wrong foot. Entrapment is not a constitu-

tional defense. It is a defense implied from the intention

of Congress not to sanction the punishment of crimes cre-

ated by over zealous federal authorities. In Sorrells,

Sherman, Russell and Hampton, dissents advocated a due

process rationale for the defense but that view has been

expressly renounced four times. The cases cited in the

en bane opinion as holding, “we review the government's

involvement in undercover operations under due process

principles,” all say either expressly or impliedly that the

Government undercover operations may be reviewed both

under entrapment principles and due process—super-

visory principles.

Having switched the theory of entrapment from stat-

ute to constitution, the Eighth Circuit borrows the

Hampton plurality’s language that, “the Fifth Amend-

ment come's! into play only when the Government ac-

tivity in question violates some protected right of defend-

ant.”” The Eighth Cireuit ignores the sentence after next

in the Hampton plurality opinion, “If the result of gov-

ernment activity is to ‘implant in the mind of an inno-

cent person the disposition to commit the alleged offense

and induce its commission. . .’ Sorrells, supra, at 442,

... the defendant is protected... .”. So defendant is pro-

tected by a judicially fashioned rule to enforce a statu-

tory limitation.

Then the opinion says, “Jacobson has no constitutional

right to be free of investigation.” That merely begs the

question because it announces the conclusion that every-

one is always subject to investigation at any time for no

reason. It holds that even though the Government knew

that Jacohson had committed no crime, was not planning

to commit one and was not engaged in ongoing criminal

activity, and even though Justice Department regulations

and Postal Service guidelines indicated that Jacobson

should he left alone, the authorities nevertheless could

properly continue to entice him to violate the law because

he is always subject to investigation.* This rule means

the end of the entrapment defense because it focuses

solely on the Government’s right to investigate and denies

the citizen protection from Government activity which

implants in the mind of an innocent person the disposi-

tion to commit the alleged offense and induces him to

commit it.

The en banc opinion then goes on to say that: “Jacob-

son does not claim the government’s decision to investi-

gate him deprived him of any right secured him by the

constitution. Nevertheless, Jacobson borrows from the

rule of particularized suspicion that governs investiga-

tory detentions, Terry v. Ohio, 392 U.S. 1, 27 (1968).

There is no constitutional basis for this borrowing since

the Government’s decision to investigate Jacobson did not

encroach on Jacobson’s ‘right to personal security.’ ”

This is strange and frightening reasoning. Neither

petitioner nor Judge Heaney borrowed from Terry. The

borrowing was from the Attorney General’s Guidelines,

the Postal Inspector’s own criteria for subjects to be

included in Project Looking Glass and prior Supreme

Court and Circuit Court opinions indicating that the

Government must have some reasonable suspicion or

cause to conclude that a subject has committed, is com-

mitting or is likely to commit a crime before he may be

targeted for undercover solicitation to engage in crim-

inal activity.

“The Eighth Circuit’s en banc suggestion that Jacobson corre-

sponded with “another adult who shared his interest in child

erotics” is simply not sustained by any evidence. 916 F.2d 467

(C.A. &, 1990).

CONCLUSION

Judge Heaney’s rule requiring reasonable suspicion

that a similar crime has been committed or is likely to

be committed in the future before targeting subjects

for intruisive undercover operations is about as clear

and simple as any that could be announced. It avoids

the exercise by the court of a “dispensing power.” It

leaves the law pretty much where it was left by Sorrells

and Sherman. It provides suitable guidance for law en-

forcement officials based upon administrative regulations

they have imposed upon themselves. It answers a ques-

tion these officials need answered by the judiciary, that

is, how is the government to know when it may employ

undercover operations against specific individuals?

The en banc opinion, however, turns entrapment on its

head. It says entrapment is a constitutional defense, it

must be analyzed under due process principles. Due pro-

cess can never avail, however, because “no one has a

constitutional right to be free from investigation” even

if there is no reason to investigate.

All that petitioner asked the Eighth Circuit to do was

articulate a judicially fashioned rule to enforce a previ-

ously announced statutory limitation upon the Govern-

ment’s execution of the federal criminal laws.

All petitioner desired was an ennunciation of the com-

mon thread running through entrapment cases similar

to his own. Judge Heaney, drawing on language of long

established precedent and government regulations, gave

it to him.

The Eighth Circuit’s en bane opinion not only obliter-

ates a rational element of the entrapment defense, it up-

sets the law of the entire entrapment area, blending the

worst from Supreme Court minority and plurality opin-

ions to encapsulate a dangerous idea that could lead to

completely uncontrolled Government undercover investi-

gations.

The Eighth Circuit has decided important questions of

federal law in a way which conflicts with applicable de-

cisions of this Court. It has decided important questions

about the entrapment and “outrageous government con-

duct” defenses which have not been, but should be, set-

tled sy the Supreme Court.

Respectfully submitted,

HERBERT J. FRIEDMAN

Counsel of Record

FRIEDMAN LAW OFFICE

300 Court House Plaza

633 South 9th Street

P.O. Box 82022

Lincoln, NE 68501

(402) 476-1093

GEORGE H. Moyer, JR.

MOYER, MOYER, EGLEY,

FULLNER & WARNEMUNDE

114 West Third Street—Box C

Madison, NE 68748

(402) 454-3321

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2097NE

UNITED STATES OF AMERICA,

Appellee,

Vv.

KEITH M. JACOBSON,

Appellant.

Appeal from the United States District Court

for the District of Nebraska

Submitted: May 17, 1990

Filed: October 15, 1990

Before LAY, Chief Judge, HEANEY, Senior Circuit

Judge, McMILLIAN, ARNOLD, JOHN R. GIBSON,

FAGG, BOWMAN, WOLLMAN, MAGILL, and BEAM,

Circuit Judges, En Bane.

FAGG, Circuit Judge.

A jury convicted Keith M. Jacobson of knowingly re-

ceiving through the mails sexually explicit material de-

’ 2a

picting a miner. See 18 U.S.C. § 2252(a)(2) (Supp. V

1987). Jacobson appeals, and we affirm.

When police searched a California pornography book-

store, they discovered Jacobson’s name on the bookstore’s

mailing list. Jacobson had ordered three items from the

bookstore, two magazines featuring photos of nude ado-

lescent boys and a brochure listing stores in the United

States and Europe selling sexually explicit materials. Pos-

ing as a member of a hedonist organization, a postal in-

spector mailed Jacobson a sexual attitude survey and a

membership application. Jacobson paid the membership

fee to receive a quarterly newsletter from the organiza-

tion and returned the survey expressing his preference

for preteen sex, Later, a postal inspector mailed Jacob-

son another survey. Jacobson responded positively, “Please

feel free to send me more information. I am interested

in teenage sexuality.” The postal inspector then mailed

Jacobson a list of pen pals with similar sexual interests,

and Jacobson began corresponding with pen pal Carl

Long, the undercover identity of a postal inspector. Ja-

cobson sent Carl Long a newspaper for homosexuals and

two letters. Another postal inspector sent Jacobson a

letter inviting him to order a child pornography cata-

logue. Jacobson requested the catalogue and then or-

dered Boys Who Love Boys, a magazine advertised in the

catalogue. The catalogue described Boys Who Love Boys

as “eleven year old and fourteen year old boys get it on

in every way possible. Oral, anal sex and heavy mastur-

bation. If you love boys, you will be delighted with this.”

Jacobson also ordered a set of sexually explicit photo-

graphs of young boys from another brochure a customs

service agent mailed him. The photographs were never

delivered to Jacobson. Following a controlled delivery of

the magazine, postal inspectors arrested Jacobson when

they searched his home and found Boys Who Love Boys.

All told, the postal inspectors mailed Jacobson two sex-

ual attitude surveys, seven letters measuring his appetite

for child pornography, and two sex catalogues. Jacobson

responded with interest on eight occasions.

On appeal, Jacobson contends the government cannot

begin an undercover investigation of a suspected person

unless the government has reasonable suspicion based on

articulable facts that the suspected person is predisposed

to criminal activity. Although Jacobson did not raise this

legal issue in the district court, both the government and

Jacobson were given an opportunity to brief and argue

the issue before the court en bane. We thus proceed on

the premise that this issue is properly before us. Jn re

Modern Textile, 900 F.2d 1184, 1191 (8th Cir. 1990).

Apart from any question of whether the government’s

investigatory conduct deprived Jacobson of due process of

law, Jacobson contends we should bar the government

from obtaining a conviction in his case because the gov-

ernment did not have reasonable suspicion of wrongdoing

on his part before targeting him for an undercover in-

vestigation. Jacobson argues this bar should apply even

when the character of the government’s investigation is

not outrageous. We disagree.

In this circuit, we review the government’s involve-

ment in undercover investigations under due process

principles. United States v. Irving, 827 F.2d 390, 393

(8th Cir. 1987) (per curiam). The same is true of other

courts of appeals. See United States v. Miller, 891 F.2d

1265, 1267 (7th Cir. 19891; United States v. Driscoll,

852 F.2d 84, 86-87 (3d Cir. 1988); United States v.

Jenrette, 744 F.2d 817, 823-24 & n.13 (D.C. Cir. 1984),

cert. denied, 471 U.S. 1099 (1985); United States v.

Gamble, 737 F.2d 853, 856-60 (10th Cir. 1984); United

States v. Myers, 635 F.2d 932, 941 (2d Cir.), cert. de-

nied, 449 U.S. 956 (1980).

Due process limitations “come into play only when the

[government activity in question violates some protected

right of the defendant.” Hampton v. United States, 425

U.S. 484, 490 (1976) (emphasis omitted). Jacobson has

no constitutional right to be free of investigation. Unite

States v. Trayer, 898 F.2d 805, 808 (D.C. Cir. 1990),

petition for cert. filed, No. 89-7764 (June 13, 1990).

Indeed, Jacobson does not claim the government’s decision

to investigate him deprived him of any right secured by

the constitution. Nevertheless, Jacobson borrows from

the rule of particularized suspicion that governs investi-

gatory detentions, Terry v. Ohio, 392 U.S. 1, 27 (1968)

to narrow the government’s power to initiate undercover

investigations. There is no constitutional basis for this

borrowing since the government’s decision to investigate

Jacobson did not encroach on Jacobson’s “right to personal

security.”._Jd. at 9. Jacobson’s demand for particularized

suspicion runs against the grain “of the post-Hampton

cases decided by the courts of appeals {holding] that due

process grants wide leeway to law enforcement agen|(ts]

in their investigation of crime.” United States v. Ka-

minski, 703 F.2d 1004, 1009 (7th Cir. 1983); see also

Hampton, 425 U.S. at 495 n.7 (Powell, J., concurring).

We thus join with the courts of appeals that hold the

constitution does not require reasonable suspicion of

wrongdoing before the government can begin an under-

cover investigation. See Jenrette, 744 F.2d at 824 & n.13;

Gamble, 737 F.2d at 860; United States v. Thoma, 726

F.2d 1191, 1198-99 (7th Cir.), cert. denied, 467 U.S. 1228

(1984): United States v. Jannotti, 673 F.2d 578, 609

(3d Cir.) ‘en banc), cert. denied, 457 U.S. 1106 (1982) ;

Myers, 635 F.2d at 941; see also United States v. Stein-

horn, 739 F. Supp. 268 (D. Md. 1990). But see United

States v. Luttrell, 889 F.2d 806, 812-14 (9th Cir. 1989)

‘constitutional norms require reasoned grounds for un-

dercover investigations), reh’g en bane granted, 906 F.2d

1384 (1990). To hold otherwise would give the federal

judiciary an unauthorized “veto over law enforcement

practices of which it [does] not approve.” United States

». Russell, 411 U.S. 423, 435 (1973); see also United

States v. Lovasco, 431 U.S. 783, 790 (1977) ‘judges are

not free to impose their personal notions of fairness on

law enforcement officers under the guise of due process )

In our view, when the government’s investigatory con-

duct does not offend due process, the mere fact the un-

dercover investigation is started without reasonable sus-

picion “does not bar the conviction of th ;

74 99 ° ose

bait.” Jannotti, 673 F.2d at 609. spar

Jacobson next contends the government’s ji i

conduct Was outrageous and violated his cece —

This contention is without merit. We recognize due a

ess bars the government from invoking judicial kee

to obtain a conviction when the investigatory conduct of

law enforcement agents is outrageous. Gunderson v

Schlueter, 904 F.2d 407, 410-11 (8th Cir. 1990) (citing

Hampton, 425 U.S. at 492-95 (Powell, J., concurrin 7

Russell, 411 U.S. at 431-32). Because the nth

may go a long way in concert with the investigated per-

son without violating due process, United States v. Muss-

lyn, 865 F.2d 945, 947 (8th Cir. 1989) (per curiam)

the level of outrageousness needed to prove a due process

violation “is quite high,” Gunderson, 904 F.2d. at 410

Indeed, the government’s behavior must shock the con-

science of the court. Id. (citing Rochin v

U.S. 165, 172 (1952) ). & Rochin v. California, 342

We simply cannot characterize the government’s con-

duct in Jacobson’s case as outrageous. Having discovered

Jacobson’s name on a_pornographer’s mailing list, the

government pursued its investigation over a period of

twenty-nine months by mailing surveys, letters, and cata-

logues to Jacobson. Jacobson responded, remitting a mem-

bership fee, requesting more information correspondin

with another adult sharing his interest in child Poe ag

and finally ordering obscene magazines and photogra hs

depicting “young boys in sex action fun.” The coma

spectors did not apply extraordinary pressure on ily

son. The inspectors merely invited Jacobson to purchas

pornographic material through the mail. See Genta

703 F.2d at 1009 (the offer of reasonable inducements

is a proper means of investigation). Unlike face-to-face

contacts, Jacobson easily could have ignored the contents

of the mailings if he was not interested in them. Similar

undercover operations aimed at child pornography collec-

tors “have withstood the constitutional challenge |Jacob-

son] now raises.” Musslyn, 865 F.2d at 947 (citations

omitted).

Jacobson also contends he was entrapped as a matter

of law. We cannot agree. The jury rejected Jacobson’s

entrapment defense. Jacobson argues, however, the evi-

dence clearly shows entrapment: the postal inspectors

originated the criminal plan, implanted the disposition to

purchase child pornography into Jacobson’s otherwise in-

nocent mind, and Jacobson ordered the illegal magazine

at their behest. See United States v. Pfeffer, 901 F.2d

654, 656 (8th Cir. 1990). We view the evidence in the

light most favorable to the government in deciding

whether there is a jury issue on entrapment, id., and

having done so, we conclude this is not a case in which

the government was a manufacturer rather than a de-

tector of crime.

Entrapment is established as a matter of law only when

the absence of defendant’s predisposition to commit a

crime is apparent from the uncontradicted evidence.

Thoma, 726 F.2d at 1197. Having considered the factors

that bear on a criminal defendant’s predisposition, id.,

we are convinced the district court properly submitted

the question of Jacobson’s entrapment to the jury. The

government presented ample evidence that the postal in-

spectors only provided Jacobson with opportunities to

purchase child pornography and renewed their efforts

from time to time as Jacobson responded to their solicita-

tions. Indeed, the panel’s opinion recognized Jacobson’s

response to a survey mailed to him by the postal inspec-

tors “indicated a predisposition to receive through the

mails sexually explicit materials depicting children,”

United States v. Jacobson, 893 F.2d 999, 1000 (8th Cir.

1990), and “justif{ied] the decision to offer Jacobson

the opportunity to purchase illegal materials through the

mail,” id. at 1001. Jacobson was not entrapped as a mat-

ter of law.

Finally, Jacobson contends the district court committed

error in admitting certain evidence and in failing prop-

erly to instruct the jury. We have carefully considered

these contentions and find them without merit.

We thus affirm Jacobson’s conviction.

LAY, Chief Judge, dissenting

In Hampton v. United States, 425 U.S. 484 (1975), the

Supreme Court recognized that “the entrapment defense

‘focusjes] on the intent or predisposition of the defend-

ant to commit the crime,’ rather than upon the conduct of

the Government’s agents.” /d. at 488 (quoting United

States v. Russell, 411 U.S. 423, 429 (1973)): see also

United States v. Thoma, 726 F.2d 1191, 1197 (7th Cir

1984), cert. denied, 467 U.S. 1228 (1984) (entrapment is

established as a matter of law if the uncontroverted evi-

dence indicates that a defendant was not predisposed to

commit a crime).

In the present case, it is clear the government entrapped

Jacobson as a matter of law. Jacobson is a fifty-seven

year old farmer from Newman Grove, Nebraska. Prior

to his conviction, Jacobson’s criminal record reflected only

a 1958 conviction for driving while under the influence.

On F ebruary 4, 1984, Jacobson lawfully ordered from

Dennis Odom, a California businessman, two nudist maga-

zines and a brochure. Several months later, the govern-

ment obtained Odom’s mailing list, which included Jacob-

son’s name. Although the government possessed no infor-

mation that Jacobson had previously purchased obscene

materials, he nevertheless became the target of five under-

cover sting operations. Over a period of two and one-half

years, the government, using as a subterfuge various fic-

titious organizations, repeatedly solicited Jacobson through

the mail to purchase illegal pornography. Jacobson fi-

nally succumbed to the government's pressure by ordering

“Boys Who Love Boys,” a pornographic magazine.

From the uncontroverted facts in this case, it is readily

apparent that Jacobson was not predisposed to commit the

crime of receiving through the mails sexually explicit

materials depicting a minor, The government contends

that Jacobson had the requisite predisposition based on

his answer to a survey that indicated he was interested

in pre-teen sex magazines. Jacobson’s response merely

demonstrates that the government set out to entrap him

because he had legally ordered two magazines that later

proved to be obscene. Based on Jacobson’s prior history,

it is not clear that he would knowingly and voluntarily

violate the law by purchasing obscene materials. The evi-

dence fails to show that Jacobson was predisposed to com-

mit the crime of which he was ultimately convicted.

I find the government’s conduct in this case to be rep-

rehensible. The government invested considerable time

and money to prosecute a man who never would have com-

mitted a crime but for the government’s encouragement,

The government should not concentrate its efforts on in-

criminating innocent individuals; rather it should strive

to suppress criminal behavior.

HEANEY, Senior Circuit Judge, dissenting.

Keith Jacobson’s conviction should be set aside. Prior

to instituting the sting, the Postal Service possessed no

evidence giving rise to a reasonable suspicion that Jacob-

son. a 57-vear old, law-abiding, Nebraska farmer with a

20-year record of honorable service in the armed services

of the United States, had violated child obscenity laws in

the past or was likely to do so in the future. The target-

ing of Jacobson violated federal law enforcement guide-

lines requiring an investigative agency to have a reason-

able suspicion before investigating an individual that the

prospective target is engaging, has engaged, or is likely

to engage in illegal activities of a similar type.

Jacobson’s conviction should also be set aside because

the conduct of the Postal Service was outrageous, not only

for the reason previously stated, but also because the

Service made at least ten mailings to Jacobson over a

period of 27 months, January 1985 to May 1987, before

he succumbed to its solicitations to order an illegal maga-

zine.

Had the Postal Service left Jacobson alone, he would

have, on the basis of his past life, continued to be a law-

abiding man, caring for his parents, farming his land,

and minding his own business, Now he stands disgraced

in his home and his community with no visible gain to the

Postal Service in the important fight against the sexual

exploitation of children.

The majority is concerned about unduly limiting the

government’s investigation of crime. I cannot accept this

view, particularly because the government itself rejects

the tactics used here as unacceptable.

An argument can, of course, be made that the adminis-

trative agency itself should enforce the policy against the

targeting of individuals unless a reasonable suspicion ex-

ists for so doing, and well it should. The Postal Service

should have done so here by vetoing the local decision to

pursue Jacobson. But when an important constitutional

right is involved, we should not shrink from requiring

that a federal policy be followed. Of course, Jacobson has

no right to be free from investigation; all of use, judges

included, have no such right. But here the government

unlawfully undertook to induce him to violate the law

with repeated solicitations to buy obscene materials. Be-

fore commencing the sting, the government had no evi-

dence that Jacobson had ever purchased or possessed such

materials or desired to do so.

10a

Jacobson, a 57-year old resident of Newman —

Nebraska, currently lives on his family farm and suppo ts

his parents. He enlisted in the United States Navy in

1951. During his tour of duty, he served on a eae pd

in the Korean theater. He was honorably a

1955. He enlisted in the United States Army es os.

He served in the Korean and European theaters an wa

decorated for his service. He retired from the Army in

1974.

On returning to Nebraska, Jacobson became a omen

bus driver and served in that capacity for ten years.

Upon his retirement, he received a certificate of =

mendation from the Board of Education. There is not 1

hint in his 20-year service record of Legtmpsewsee in il-

legal or improper sexual activities, and his record as :

school bus driver is unblemished. He has no . imine

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 did business tn

the Electric Moon in San Diego, California. On May =

1984, the government executed a search warrant on e

Electric Moon business premises and seized the apc

mailing list. Jacobson’s name and address were on tha

mailing list.

The two magazines Jacobson ordered were “Bare c*

I” and “Bare Boys II.” They were nudist magazines, : \e

receipt of which did not violate any law. Receipts or

order were found in Blue Moon’s files. The governmen

had no information at the time it instituted the a

that Jacobson had purchased obscene materials a

the mails or that he produced child pornography or that

he was predisposed to do either.

Nevertheless, the government made J acobson the target

of five undercover sting operations involving at least

twelve separate mail solicitations over a period of two

lla

and one-half years. Jacobson answered a survey sent to

him during the first undercover operation. In his response,

he indicated an interest in material about preteen sex.

The government, in the guise of five separate, fictitious

organizations and one fictitious individual, contacted Ja-

cobson through the mail eleven more times before he fi-

nally ordered “Boys Who Love Boys,” an admittedly ob-

scene magazine. After sending him this publication, gov-

ernment agents arrested Jacobson and searched his home.

No other illegal materials were found.

I adhere to the views I expressed in our panel opinion

that Jacobson’s Electric Moon purchase did not evidence

a predisposition to purchase illegal child pornography and

thus did not give rise to a reasonable suspicion that

Jacobson had committed a crime in the past or was likely

to commit one in the future. I continua to believe that

the government must have such a reasonable suspicion be-

fore instituting an undercover sting directed at an in-

dividual, see United States v. Luttrell, 889 F.2d 806, 813

(9th Cir. 1989), reh’g en bane granted, 906 F.2d 1384

(9th Cir. July 12, 1990), and that because no such sus-

picion existed in this case, Jacobson’s conviction must be

set aside. Additionally, I believe that the Postal Service’s

repeated solicitation of Jacobson to purchase illegal porn-

ography constituted conduct so outrageous and offensive

that a conviction arising therefrom offends due process

principles. See United States v. Russell, 411 US. 423,

431-32 (1973).

The requirement that law enforcement officials have a

reasonable suspicion of actual or potential criminal be-

havior before targeting an individual for an undercover

investigation is consistent with the investigative policies

of the United States Attorney General, the FBI, and the

United States Postal Service. The Attorney General’s

guidelines on FBI undercover operations provide that

undercover operations offering an inducement to illegal

activities are not to be approved unless:

12a

(a) there is a reasonable indication, based on infor-

mation 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 contem-

plated illegal activity.

Office of the Attorney General, Attorney Generai’s Guide-

lines on FBI Undercover Operations 16 (Dec. 31, 1980),

reprinted in Law Enforcement Undercover Activities:

Hearings before the Select Comm. to Study Law Enforce-

ment Undercover Activities of Components of the Dep't

of Justice, U.S. Senate, 97th Cong., 2d Sess. 86, 101

(1982) {hereinafter Senate Hearings| ; see alse Office of

the Attorney General, Attorney General’s Guidelines on

Criminal Investigations of Individuals and Organizations

1 (Dec. 2, 1980), reprinted in Senate Hearings, supra,

at 121 (“A key principle underlying these practices, and

reflected in these Guidelines, is that individuals and or-

ganizations should be free from law enforcement scrutiny

that is undertaken without a valid factual predicate and

without a valid law enforcement purpose.” .'

1 William H. Webster, then director of the FBI, endorsed a rea-

sonable suspicion standard for undercover investigations in his

testimony during the Senate hearings on Justice Department under-

cover operations:

(Ojne of the basic standards for initiating an operation or

for making a change in direction or a change in focus, which

is one of the sore points we have observed in these various

operations, currently appears in the Attorney General's Guide-

lines on Criminal Investigations, and that is that there must be

facts or circumstances that reasonably indicate that a Federal

criminal violation of the type to be investigated has occurred,

l3a

Additionally, Raymond J. Mack, an inspector with the

United States Postal Inspection Service, testified at Ja-

cobson’s trial that the purpose of Postal Service testing

gem was to bring us into contact with individuals

that have committed some type of criminal offense or

|are| in the act of committing a criminal offense.” Trial

transcript at 92. To that end, according to Mack Postal

Inspection Service sting operations were to be directed

only at those individuals whose names appeared inde-

pendently on at least two lists acquired from the follow-

ing sources: a mailing lists seized by postal inspectors

in separate child pornography investigations; incoming

child pornography seized by the United States Customs

Service ; programs conducted by the FBI; investigations

of mail order dealers of child pornography conducted b

metropolitan police departments and state police matin

cies; or Postal Inspection Service regional testing pro-

grams. Trial transcript at 95, 97, 146-47. Calvin M

Comfort, a prohibited mailing specialist with the Postal

Inspection Service, acknowledged at trial that the sole

independent source on which Jacobson’s name appeared

ome th r ae .

a e Electric Moon mailing list. Trial transcript at

The majority cites five cases from other circuits as

holding that “the Constitution does not require reason-

able suspicion of wrongdoing before the government can

begin an undercover investigation” of a particular indi-

vidual. One of these cases appears to be on point. S

United States v. Gamble, 737 F.2d 853 (10th Cir 1984).

In that case, the court allowed the defendant’s conviction

is occurring, or is likely to oce

: j cur. In other words, a re:

cause provision. ra

weed Hearings, supra, at 1041 (statement of Hon. William H

ebster) ; see also id. at 1055 (“We hav

: ; 5! e have come pretty clos it i

esenleh hv q. a tty se to it in

the investigative guidelines that are already there, if we are talk

ing about a reasonable suspicion basis. I have no problem with

requiring an articulation of the reasons. | think we are doing that

now, and we will certainly do it in the future.”) ’

l4a

to stand despite its finding that government agents fa-

bricated criminal schemes to enmesh a black doctor with

no criminal record about whom the agents had “no ap-

parent hint of a predisposition to criminal activity.” Jd.

at 860.

In United States v. Thoma, 726 F.2d 1191 (7th Cir.),

cert. denied, 467 U.S. 1228 (1984), the court acknowl-

edged that the government had a good faith basis for

investigating the defendant. /d. at 1198. Its subsequent

statement that such a basis is not a constitutional pre-

requisite to an undercover investigation is therefore dic-

tum. See id. at 1198-99. In United States v. Jannotti,

673 F.2d 578 (3d Cir.) (en banc), cert. denied, 457 US.

1106 (1982), an attorney with a “proven ability to en-

list corrupt politicians” provided the government with the

defendants’ names. /d. at 609. The Third Circuit con-

cluded that this source “provided the government with a

reasonable basis for the initiation of the bribe offers” it

made to the defendants. 7d. In an alternative holding,

the court stated: “Where the conduct of the investiga-

tion itself does not offend due process, the mere fact that

the investigation may have been commenced without

probable cause does not bar the conviction of those who

rise to its bait.” Jd. (emphasis added). The Jannotti

court expressed no opinion as to whether an investigation

commenced without a degree of suspicion less than that

required for probable cause, or with no suspicion at all,

would offend due process.

In United States v. Jenrette, 744 F.2d 817 (D.C. Cir.

1984), cert. denied, 471 U.S. 1099 (1985), the District

of Columbia Circuit rejected the contention of a former

United States congressman that the FBI’s targeting of

him in the ABSCAM sting without a reasonable suspicion

of criminal behavior violated due process. The court re-

lied on United State v. Kelly, 797 F.2d 1460 (D.C, Cir.),

cert. denied, 464 U.S. 908 (1983), an earlier appeal in

another ABSCAM prosecution. The Kelly court stated:

l5a

[Blecause dishonest public officials, responsive more

to money than to their obligations to the nation, may

cause grave harm to our society, we recognize the

need for law enforcement efforts to detect official

corruption. Furthermore, such corruption is “that

type of elusive, difficult to detect, covert crime which

may justify Government infiltration and undercover

activities.”

Id. at 1473-74 (emphasis added) (citation omitted). The

court considered the “genuine need to detect corrupt pub-

lie officials as well as the difficulties inherent in doing so”

to conclude that the FBI’s targeting of Congressman

Kelly did not constitute intolerable government conduct.

Ic, at 1474, The Jenrette court recognized that Kelly’s

holding was premised on law enforcement needs in de-

tecting official corruption, observing that “other courts

of appeal have considered and rejected the contention

that the government must have a reasonable suspicion of

wrongdoing before offering a bribe to a public official.”

744 F.2d at 824 n. 13 (emphasis added) (citations

omitted).

Similarly, in United States v. Myers, 635 F.2d 932

(2d Cir.), cert. denied, 449 U.S. 956 (1980), the Second

Circuit rejected the argument that the Constitution re-

quires “The Executive Branch |to] demonstrate some

basis of suspicion (short of probable cause) before decid-

ing to make any Member of Congress the target of a

sting.” Jd. at 941 (emphasis added). The court based its

rejection of such a requirement, in part, on the limita-

tions the Speech or Debate Clause places on the conduct

of a congressman that may be made the basis of a pros-

ecution and the evidence that may be used against him.

Id.

Two factors motivating the holdings in Jenrette and

Myers, the need to detect official corruption and the con-

stitutional safeguards available to congressmen-targets of

the ABSCAM sting, are absent from the government’s

l6a

targeting and prosecution of Jacobson. Thus, we need

not decided in this case whether we should follow them.

Additionally. I believe the conduct of the Postal Ser-

vice’s sting operations involving Jacobson was so out-

rageous that the prosecution arising therefrom violates

Jacobson’s due process rights. Once the Postal Service

obtained Jacobson’s name from the Flectrie Moon mailing

list, its operatives commenced a two and one-half year

campaign of deceptive mail solicitations whose sole 9ob-

ject was to induce Jacobson to commit a crime “merely

for the sake of pressing criminal charges against him

when, as far as the record reveals. he was lnwfully and

peacefully minding his own affairs.” United States v.

Twigg, 588 F.2d 373, 381 (3d Cir. 1978).

The Postal Service first contacted Jacobson through a

sting operation called “The American Hedonist Society,”

“a private, members only soc’cty for those who adhere

to the doctrine that pleasure and happiness is the sole

good in life.” Government Fxhibit 7. Jacobson com-

pleted the purportedly confidential questionnaire, indicat-

ing an interest in preteen sexual material. The Postal

Service then “enrolled” Jacohson ‘in the American He-

donist Society and began sending him the Society’s news-

letters, which advertised sexually explicit materials for

sale. Jacobson never ordered any of the advertised ma-

terials.

The Postal Service then approached Jacobson through

“Midlands Data Research,” “a small, o'd established firm

in Lincoln, Nebraska’ which purported to conduct “con-

sumer survevs on a variety of subjects.” Government

Exhibit 8. The mailing included a questionnaire and a

letter which stated: “If you believe in the joys of sex

and the complete awareness of those lusty and youthful

lads and lasses of the neophite |sic] age, we would like

to hear from you.” /d. Jacobson responded that Mid-

lands Data Research should feel free to send him further

information, but did not answer the questionnaire.

17a

Jacobson’s failure to complete the questionnaire

prompted the Postal Service to send another letter and

questionnaire from the “Heartland Institute for a New

Tomorrow” (HINT). HINT described itself as a lobby-

ing organization “founded to protect and promote sex-

ual freedom and freedom of choice” by urging the repeal

of “arbitrarily imposed legislative sanctions restricting

your sexual freedom.” Exhibit 102. The HINT letter

asked Jacobson to reconsider his refusal to participate

in the Midlands Data Research survey. Jacobson re-

sponded by completing the HINT questionnaire.

The Postal Service next sent Jacobson a letter from the

director of HINT, which stated:

We at HINT have computer matched your response

with the responses of others who have similarly com-

pleted our survey questionnaire. Enclosed with this

correspondence you will find a list of persons with

backgrounds and interests similar to yours. Won’t

you take a little time in the interest of sexual free-

dom and write to one of the persons on the list? It’s

the only way to overcome the pressures of society

which come to bear on each of us.

We welcome any comments or suggestions you might

have concerning HINT or its programs.

Defendant’s Exhibit 113. Jacobson neither responded to

this letter nor wrote to any of the individuals on the ac-

companying list.

The Postal Service next used a technique known as

“mirroring” to acquire further information from Jacob-

son. A postal inspector posing as “Carl Long,” a sup-

porter of HINT with interests similar to Jacobson’s,

wrote to Jacobson stating that he collected erotic litera-

ture and wished to corespond with him. Government Fx-

hibit 11; trial transcript at 342. Jacobson replied that

he too collected erotica and would be willing to corre-

spond. Government Exhibit 12. Long responded, inquir-

ing about Jacobson’s interest in amateur sex videos.

18a

Government Exhibit 13. Jacobson again wrote to Long,

noting that amateur videotapes were difficult to acquire,

naming several film sources, and stating that he pre-

ferred “good looking young yuys (in their late teens and

early 20’s).” Government Exhibit 14. Jacobson failed to

answer a third letter from Long.

After Jacobson ceased writing to Long, the Postal Ser-

vice again contacted Jacobson, posing as the “Far Eas-

tern Trading Company Ltd.” of Hong Kong and “Produit

Outaouais” of Quebec, two mail-order retailers of erotica.

After receiving a second mail solicitation, Jacobson or-

dered “Bovs Who Love Boys” from the Far Eastern

Trading Company. When the Postal Service delivered the

magazine to Jacobson, he was arrested, charged with, and

convicted of knowingly receiving through the mails sex-

ually explicit material depicting a minor.

Jacobson’s conviction thus was the culmination of the

Postal Service’s two and one-half year campaign to in-

duce this heretofore law-abiding farmer to violate the

obscenity laws. Posing as an imaginative variety of

spurious organizations and individuals, all apparently

legitimate, the Postal Service first engaged Jacobson in

a dialogue about erotica, then presented him with a

series of opportunities to purchase government-compiled

pornography through the mails. When Jacobson failed

to complete a Postal Service questionnaire, the Postal

Service sent him another and urged him to reconsider

responding. When Jacobson ceased corresponding with a

Postal Service “pen pal,” the Postal Service renewed its

approach under the quise of two fictitious purveyors of

erotica who assured Jacobson that their mailings would

not run afoul of United States Customs.

In its pursuit of Jacobson, I believe the Postal Ser-

vice’s direct and continuous involvement in the creation

and maintenance of opportunities for criminal activity

rises to that demonstrable level of outrageousness which

violates due process. See Hampton v. United States, 425

19a

U.S. 484, 495 n.7 (1976) (Powell, J., concurring) ; see

also Greene v. United States, 454 F.2d 783, 787 (9th Cir.

1971) (“When the Government permits itself to become

enmeshed in criminal activity, from beginning to end, to

the extent which appears here, the same underlying ob-

jections which render entrapment repugnant to Amer-

ican criminal justice are operative.’’).

Moreover, all the time, effort, expense, and ingenuity

invested in apprehending Jacobson yielded only a single

conviction of a single individual for the receipt of a sin-

gle obscene magazine that would never have entered the

United States mails had the Postal Service not deposited

it there in the first place. The investigation of Jacobson

produced no new evidence against existing pornography

producers or purchasers and did nothing to further the

goal of preventing the sexual exploitation of minors. As

the Seventh Circuit has observed:

If the police entice someone to commit a crime who

would not have done so without their blandishments,

and then arrest him and he is prosecuted, convicted,

and punished, law enforcement resources are squan-

dered in the following sense: resources that could

and should have been used in an effort to reduce the

nation’s unacceptably high crime rate are used in-

stead in the entirely sterile activity of first inciting

and then punishing a crime.

United States v. Kaminski, 703 F.2d 1004, 1010 (7th Cir.

1983) (Posner, J., concurring).

In my view, the government’s investigation and prose-

cution of Jacobson amounts to the deliberate manufacture

of a crime that would never have occurred but for the

Postal Service’s overzealous efforts to create it. Jacob-

son’s conviction should be reversed. Accordingly, I dis-

sent.

A true copy:

Teste:

Clerk, U.S. Court of Appeals, Eighth Circuit

20a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No, 88-2097

UNITED STATES OF AMFRICA,

Appellee,

Vv.

KrITH M. JACOBSON,

Appellant.

- Appeal from the United States District Court

for the District of Nebraska

Submitted: February 14, 1989

° Filed: January 12, 1990

Before LAY, Chief Judge, HEANEY, Senior Circuit

Judge, and FAGG, Circuit Judge.

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 outrage-

ous conduct gave rise to a violation of due process. We

overturn the conviction because, before instituting an

undereover 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.

2la

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 convic-

tion 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

Klectric 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 ma-

terials or contact any of the sources listed. The govern-

ment had no other information at the time that Jacobson

was purchasing through the mails or producing child

pornography, or that he was predisnosed 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 surrepti-

tiously contacted Jacobson more than eleven times. Jacob-

son answered a survey sent to him during the first under-

cover operation. In his response, he indicated a predis-

position to receive through the mails sexually explicit ma-

terials depicting children. After several opportunities to

purchase such materials under government observation,

Jacobson ordered “Bovs Who Love Boys,” a magazine

containing sexually explicit materials depicting minors.

After sending him this publication, government agents

22a

arrested Jacobson and searched his home. No other il-

legal 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 com-

munity service.

II. DISCUSSION

Jacobson raises several arguments on appeal, but at the

heart of each argument is the assertion that the govern-

ment lacked a basis for making Jacobson a target of an

undercover operation. In response, the government ar-

gues that, while his purchase of the two magazines from

Electric Moon constituted legal conduct, the purchases

evidenced a predisposition to purchase illegal child por-

nography. 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 gov-

ernment must have reasonable suspicion based on articul-

able facts before instituting an undercover operation di-

rected at a person; and (3) since the undercover opera-

tion 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

avainst Jacohson. 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

23a

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 op-

eration at the person who committed the legal act. When

an individual engages in legal conduct and no additional

or extrinsic evidence exists to give use to a reasonable

suspicion of predisposition, the government may not tar-

get 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 informa-

tion that Jacobson was purchasing illegal child pornog-

raphy through the mails or that he was producing il-

legal child pornography. See United States v. Emmert,

820 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 (1984); United States v. Leja, 563

F.2d 244, 245 (6th Cir. 1977), cert. denied, 434 U.S.

1074 (1978). Second, Jacobson had never ordered or ad-

vertised 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),

affd, 854 F.2d 35 (4th Cir. 1988). Third, the govern-

ment did not inadvertently target Jacohson as a result

of pre-existing investigations. See United States v. Esch,

832 F.2d 531, 533 (10th Cir. 1987), cert. denied, 108

S. Ct. 1084 (1988); United States v. Quinn, 543 F.2d

640, 643 (8th Cir. 1976). Fourth, there were no inde-

pendent articulable facts that gave rise to the suspicion

24a

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

(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 predis-

posed 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, hop-

ing 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 in-

dividual. Evidence tending towards a reasonable suspi-

cion 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 (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 hear-

ings, 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 Com-

ponents of the Department of Justice, S. Rep. No. 682,

97th Cong., 2d Sess. 13 (1982).!

1In each of the ABSCAM cases, reasonable suspicion does ap-

pear from the record. United States v. Jenrette, T44 F.2d 817 (DC.

Cir. 1984) ; United States rv. Silvestri, 719 F.2d 577 (2d Cir. 1983);

Ciuzio v. United States, 718 F.2d 413 (D.C. Cir. 1983), cert. denied,

25a

In our view, reasonable suspicion based on articulable

facts is a threshold limitation on the authority of govern-

ment 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 1299, 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.”

At the time the government targeted Jacobson, it had

no reason to believe that he was likely to commit an act

104 S.Ct. 1305 (1984); Weisz v. United States, id. (Ciuzio and

Weisz were tried together); Thompson v. United States, 710 F.2d

915 (2d Cir. 1983), cert. denied, 104 S. Ct. 702 (1984): Williams

v. United States, 705 F.2d 603 (2d Cir.), cert. denied, 104 S.Ct.

524 (1984); Kelly v. United States, 707 F.2d 1460 (D.C. Cir.),

cert. denied, 104 S.Ct. 264 (1983); Myers v. United States, 692

F.2d 828 (2d Cir. 1982), cert. denied, 461 U.S. 961 (1983): Car-

pentier v. United States, 689 F.2d 21 (2d Cir. 1982), cert. denied,

459 U.S. 1108 (1983); Alerandro v. United States, 675 F.2d 34

(2d Cir.), cert. denied, 459 U.S. 835 (1982): Jannotti v. United

States, 673 F.2d 578 (3d Cir.) (en banc), cert. denied, 457 US.

1106 (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).

* These potential harms include the creation of crime, the entrap-

ment of innocent persons, the destruction of the reputations of

innocent persons, extensive fishing expeditions among innocent citi-

zens, the creation of an air of distrust amongst colleagues and

acquaintances and the subjecting of governmet agents to tremen-

dous temptations, dangers and stresses.

26a

which would violate federal obscenity laws. No evidence

was subsequently obtained outside of the undercover op-

eration. 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 en-

trapped as a matter of law. We therefore reverse his

conviction and vacate his sentence.

FAGG, Circuit Judge, dissenting.

The panel has declared war on the government’s power

to initiate undercover investigations. Thus, I dissent.

I take issue with the panel's disinclination to apply the

controlling standard of review. This court reviews the

government's involvement in undercover investigations

under due process principles. United States v. Irving,

R97 F.2d 290, 393 (8th Cir. 1987) ‘per curiam). The

same is true of other courts of appeals. See United

States v. Luttrell, 809 F.2d 806, (Sth Cir. 1989)

‘suspicionless undercover investigations offend due proc-

esa): I nited States v. Driscoll, 852 F.2d 84, 87 (3d Cir.

1988) (due process does not require probable cause for

an undercover investigation! ; ['nited States v. Jenrette,

744 F.2d 817, 823-24 & n.13 (D.C. Cir. 1984), cert. de-

nied, 471 U.S. 1099 (1985) ‘due process does not require

reasonable suspicion of wrongdoing for an undercover

investigation): United States v. Gamble, 737 F.2d 853,

856-60 (10th Cir. 1984) (same); United States v. Myers,

635 F.2d 932, 841 (2d Cir.), cert. denied, 449 U.S. 956

(1980) (same).

Instead of deciding whether the government’s conduct

in formulating, implementing, and enmeshing Jacobson

in the investigatory scheme was fundamentally unfair,

Irving, 827 F.2d at 393, the panel has barred the govern-

ment from obtaining a conviction because the undercover

investigation was initiated without “reasonable suspicion

based on articulable facts” that Jacobson had committed

or was likely to commit a similar crime, ante at 1, 3.

27a

This bar applies even when the overall character of the

government’s investigation “does not give rise to a claim

of outrageousness.” Jd. at 6. In my view, due process

does not require an objectively quantified suspicion that

approaches the threshold of probable cause. See Garionis

v. Newton, 827 F.2d 306, 309 (8th Cir. 1987). I believe

the government can act on legitimately grounded suspi-

cions without depriving the suspected person of any right

secured by the constitution. The panel’s demand for par-

ticularized suspicion runs against the grain “of the post-

Hampton cases decided by the courts of appeals [holding]

that due process grants wide leeway to law enforcement

agents in their investigation of crime.” United States

v. Kaminski, 703 F.2d 1004, 1009 (7th Cir. 1983); see

also Hampton v. United States, 425 U.S. 484, 495 n.7

(1976) ( Povvell, J., concurring).

In my opinion, the panel has borrowed from the rule of

probable cause to arrest, Garionis, 827 F.2d at 309, and

from the rule of particularized suspicion that governs

brief investigatory detentions, Terry v. Ohio, 392 U.S.

1, 16-19, 21 (1968), for the singular purpose of narrow-

ing the government’s power to initiate undercover in-

vestigations. Needless to say, law enforcement decisions

to conduct undercover investigations are not controlled

by fourth amendment doctrine. Furthermore, the termi-

nology that functions as the backbone of the panel’s rule

“lis}] not self-defining {and the terminology] fall/s]

short of providing clear guidance dispositive of the

myriad factual situations that arise” when the govern-

ment invokes its investigative powers to penetrate the

shadowy world of crime. See United States v. Cortez,

449 U.S. 411, 417 (1981). At bottom, the panel’s rule

making runs squarely into “the difficulties attending the

notion that due process of law can be embodied in fixed

rules.” United States v. Russell, 411 U.S. 423, 431

(1973).

If the panel believes the government has violated due

process by embarking on a suspicionless investigation

28a

against Jacobson, it should say so. Luttrell, 889 F.2d at

. Tht record, however, does not support that conclu-

sion. Indeed, on the record presented here the govern-

ment’s undercover investigation fits within the terms of

the very rule the panel proposes.

The government possessed well-grounded reasons to be-

iieve that an investigation aimed at Jacobson would un-

cover criminal behavior. /d. at Jacobson’s name

was found in the customer records of a reputed child

pornographer. This discovery identified Jacobson as a

person who had previously ordered child erotica through

the mails. The customer records also disclosed that Jacob-

son had obtained a brochure outlining the methods of pur-

chasing child pornography. With this information in the

hands of experienced postal inspectors, I am at a loss to

understand how the panel finds room to “criticize the gov-

ernment for reasonably pursuing available leads” concern-

ing Jacobson’s appetite for sexually explicit portrayals of

children. United States v. Hunt, 749 F.2d 1078, 1087 (4th

Cir. 1984), cert. denied, 472 U.S. 1018 (1985). The panel

concedes that Jacobson’s response to a survey mailed to

him by the postal inspectors “indicated a predisposition

to receive through the mails sexua!ly explicit materials

depicting children,” ante at 2, and “justifjied| the deci-

sion to offer Jacobson the opportunity to purchase illegal

materials through the mail,” id, at 4.

It seems to me the panel is wearing blinders. This is

not a case where the government was in the business of

generating new crimes merely for the sake of pressing

criminal charges against an individual who was “‘scrupu-

lously conforming to the requirements of the law.” Lutt-

reli, 889 F.2d at . Jacobson was not targeted in ad-

vance, To the contrary, the government had a significant

amount of knowledge about Jacobscon’s shadowy activities,

and he was targeted for investigation because of his own

voluntary conduct.

29a

What the panel has chosen to ignore in this case is the

practical reality that the investigatory process does not

deal with hard certainties. Law enforcement officers are

entitled to draw inferences, make deductions, and arrive

at common sense conclusions about human behavior based

on available information and the behavioral patterns of

law breakers. See Cortez, 449 U.S. at 418-19. The ac-

cumulated information must be “seen and weighed not in

terms of [judicial post mortems], but as understood by

those versed in the field of law enforcement.” /d. at 418.

When the whole picture known to the postal inspectors is

viewed in this context, the officers clearly possessed legiti-

mate grounds for their suspicion of Jacobson and for

their belief that an undercover approachment of Jacobson

would reveal criminal activity. /d. at 419. “Here, fact on

fact and clue on clue afforded a basis for the deductions

and inferences that brought the officers to focus on |Ja-

cobson|.” /d. Simply stated, the panel is unwilling to

acknowledge that it is looking at reasonable police work.

Id.

Although the normal constitutional and statutory pro-

tections of criminal process have always been available to

Jacobson, he necessarily wages his legal battle against the

government’s decision to investigate him as a question of

law because the jury has rejected his entrapment defense.

This court “may someday be presented with a situation in

which the conduct of law enforcement agents [in initiat-

ing an undercover investigation] is so outrageous that due

process principles would absolutely bar the government

from invoking judicial processes to obtain a conviction,

|but Jacobson’s case] is distinctly not of that breed.”

Russell, 411 U.S. at 431-32. I thus dissent from the

panel's decision to overturn Jacobson’s conviction.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIR-

CUIT,

30a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2097NE

UNITED STATES OF AMERICA,

Appellee,

vs.

KEITH M. JACOBSEN,

Appellant.

Appeal from the United States District Court

for the District of Nebraska

JUDGMENT

This appeal from the United States District Court was

submitted on the record of the district court, briefs of the

parties and was argued by counsel. _

After consideration, it is ordered and adjudged that the

judgment of the district court in this cause is affirmed in

accordance with the opinion of this Court.

October 15, 1990

A true copy.

ATTEST :

Clerk, U.S. Court of Appeals, Eighth Circuit

MANDATE ISSUED 11 06 90

3la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CR 87-0-77

UNITED STATES OF AMERICA

Vv.

KEITH M. JACOBSON

P.O. Box 57

Newman Grove, NE 68758

JUDGMENT IN A CRIMINAL CASE

[Filed Jul. 1, 1988]

George H. Moyer, Jr., Attorney for Defendant

THE DEFENDANT ENTERED A PLEA OF:

and &) not guilty as to count(s) I.

THERE WAS A:

[0 finding () verdict] of not guilty as to «ount(s)

N/A.

C) judgment of acquital as to count(s) :

The defendant is acquitted and discharged as to this/

these count (s).

THE DEFENDANT IS CONVICTED Of THE OF-

FENSE(S) OF: receipt of sexually explicit material in

violation of Title 18, United States Code, section 2252

a 32a

‘we THE JUDGMENT OF THIS COURT THAT:

the defendant is sentenced to the custody of the Attorney

General for a period of imprisonment of three (3) years,

however the Court now suspends the sentence of imprison-

ment and places the defendant on Probation for a period

of two (2) years with the following Special Conditions:

1) the defendant shall serve 250 hours of Commu-

nity Service under the direction of the Probation

Office

2) the defendant shall pay the Taxable Cost and the

Special Assessment during the term of Probation.

In addition to any conditions of probation imposed above,

IT IS ORDERED that the conditions of probation set out

on the reverse of this judgment are imposed.

CONDITIONS OF PROBATION

Where probation has been ordered the defendant- shall:

(1) refrain from violation of any law (federal, state, and

local) and get in touch immediately with your proba-

tion officer if arrested or questioned by a law-

enforcement officer:

(2) associate only with law-abiding persons and main-

tain reasonable hours;

(3) work regularly at a lawful occupation and support

your legal dependents, if any. to the best of your

ability. (When out of work notify your prc>ation

officer at once, and consult him prior to job changes) :

(4) not leave the judicial district without permission of

the probation officer:

(5) notify your probation officer immediately of any

changes in your place of residence:

(6) follow the probation officer’s instructions and report

as directed.

33a

The court may change the conditions of probation, reduce

or extend the period of probation, and at any time during

the probation period or within the maximum probation

period of 5 years permitted by law, may issue a warrant

and revoke probation for a violation occurring during

the probation period. 7

IT IS FURTHER ORDERED that the defendant shall

pay a total special assessment of $50.00 pursuant to Title

18, U.S.C. Section 3013 for countis! T as follows:

IT IS FURTHER ORDERED that counts N/A are DIS-

MISSED on the motion of the United States.

IT IS FURTHER ORDERED that the defendant shall

pay to the United States attorney for this district any

amount imposed as a fine, restitution or special assess-

ment. The defendant shall pay to the clerk of the court

any amount imposed as a cost of prosecution. Until all

fines, restitution, special assessments and costs are fully

paid, the defendant shall immediately notify the United

States attorney for this district of any change in name

and address.

IT IS FURTHER ORDERED that the clerk of the court

deliver a certified copy of this judgment to the United

States marshal of this district.

(1 The Court orders commitment to the custody of the

Attorney General and recommends:

June 30, 1988

Date of Imposition of Sentence

/s/ Lyle E. Strom

Signature of Judicial Officer

LYLE E. STROM

Chief Judge

Name and Title of Judicial Officer

June 30, 1988

Date

34a

RETURN

I have executed this Judgment as follows:

Defendant delivered on to t at

Date

, the institution designated by the Attorney

General, with a certified copy of this Judgment in a

Criminal Case.

United States Marshal

Deputy Marshal

35a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CR. 87-0-77

UNITED STATES OF AMERICA,

Plaintiff,

KEITH M. JACOBSEN,

Defendant.

VERDICT

We, the jury empaneled to try this cause, find the de-

fendant, Keith M. Jacobsen, guilty as charged in the in-

dictment.

DATED this 26 day of April, 1988.

/s/ Henry C. Hill

Foreperson

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.