Opposition Brief — Jacobson v. United States

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Suprems Cou, U.S

Filk&p

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y } MAR 5 1991 |

No. 90-1124 :

Lnetinn v (fc Liiwnd |

In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

KEITH JACOBSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, IIl

Assistant Attorney General

Louis M. FISCHER

Altorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

BEST AVAIL

QUESTION PRESENTED

Whether government agents must reasonably suspect that

a person has committed or is likely to commit criminal acts

before the agents may conduct an undercover criminal in-

vestigation of the individual.

(1)

TABLE OF CONTENTS

Page

EE re l

EE a l

EL 2

ee Coke ee cedecessccecs 5

Nee en i eecccccesves x

TABLE OF AUTHORITIES

Cases:

Hampton vy. United States, 425 U.S. 484

en ceeecceees 4, 5,6

Osborne v. Ohio, 110 S. Ct. 1691 (1990) ....... 6

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

ES 6

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

EE 7

United States v. Hunt, 749 F.2d 1078 (4th Cir. 1984),

cert. denied, 472 U.S. 1018 (1985) ........... 7

United States v. Jannotti, 673 F.2d 578 (3d Cir.),

cert. denied, 457 U.S. 1106 (1982) ........... 7

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

1984), cert. denied, 471 U.S. 1099 (1985) .... 7

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

EE 6

United States v. Luttrell, No. 87-5303 (9th Cir. Jan.

ebewseecs 6

United States v. Miller, 891 F.2d 1265 (7th Cir.

EE SS 6

United States v. Myers, 635 F.2d 932 (2d Cir.), cert.

denied, 449 U.S. 956 (1980) ................ 7

United States v. Russell, 411 U.S. 423 (1973) ... 5

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

cert. denied, 467 U.S. 1228 (1984) ........... 7

(111)

IV

Jn the Supreme Court of the Anited States

“ases — Conti . Page

meagre vane = OcToOBER TERM, 1990

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

cert. denied, 111 S. Ct. 113 (1990) .......... 6

. ,

Constitution and statute: No. 90-1124

U.S. Const. Amend. V (Due Process Clause) ... 6 KEITH JACOBSON. PETITIONER

tS fa = =— a a et eee ae 2 ,

UNtitp STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

LOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNTTED STATES

IN OPPOSITION

OPINIONS BELOW

The opimon of the court of appeals on rehearing en banc

(Pet. App. la-19a) is reported at 916 F.2d 467. The panel

opimon of the court of appeals (Pet. App. 20a-29a) is

reported at 893 F.2d 999.

JURISDICTION

The judgment of the en banc court of appeals was entered

on October 15, 1990. The petition for a writ of certiorari

was filed on January 14, 1991. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

to

STATEMENT

After a jury trial in the United States District Court for

the District of Nebraska, petitioner was convicted of receiy-

ing through the mails sexually explicit material depicting

a minor, in violation of 18 U.S.C. 2252(a)(2). He was

sentenced to two years’ probation and 250 hours’ community

service. A panel of the court of appeals reversed his con-

viction, but on rehearing the en banc court of appeals

affirmed.

1. In June 1987 petitioner received through the mail a

magazine depicting young boys engaging in sexual activi-

ty. The distributor of the magazine turned out to be an

undercover postal inspector, and petitioner was arrested

following a controlled delivery of the magazine. Pet. App.

2a.

That delivery was the culmination of a lengthy invesuga-

tion of petitioner that began in May 1984 when police

searched a California pornographic bookstore and

discovered petitioner's name on the store’s mailing list. In

February 1984 petitioner had ordered two magazines that

contained photos of nude adolescent boys, as well as a

brochure listing other stores that sold sexually explicit

magazines. A postal inspector, posing as a member ot a

hedonist organization, then mailed petitioner a sexual at-

titude survey and a membership application. In February

1985, petitioner paid the fee to receive a quarterly newsiet-

ter from the organization. He also returned the survey. in

which he expressed a preference for preteen sex. Pet. App.

2a; Pet. 5-6. In May !986, Postal Inspector Caivin Com-

fort mailed petitioner another survey. Although petitioner

did not complete the survey, he responded affirmatively,

saying that he wished more information and that he was

“interested in teenage sexuality.” In response, Comfort sent

petitioner a list of “pen pals” who supposedly had similar

sexual interests. In reality, each of the names on the list was

a pseudonym for Comfort. Posing as “Carl Long,” Com-

fort wrote petitioner in September 1986. Petitioner wrote

“Long” twice, one time sending him a newspaper directed

to homosexuals. Pet. App. 2a; Pet. 6-8.

In March 1987, a third postal inspector sent petitioner

a letter ostensibly from a firm offering sexually explicit

materials for sale. Petitioner ordered a catalog and subse-

quently ordered a magazine entitled, Bovs Who Love Boys,

described in the catalog as “eleven year old and fourteen

year old boys get it on in every way possible. Oral, anal

sex and heavy masturbation. If you love boys, you will be

delighted with this.” Petitioner received the magazine on

June 16, 1987, via a controlled delivery. Pursuant to a war

rant, postal inspectors then searched petitioner's home and

found the magazine. Pet. App. 2a; Pet. 11-13.'

2. At trial, petitioner contended that he had been en-

trapped because there was no evidence that he was

predisposed to commit the instant offense. On appeal,

however, petitioner’s primary argument was that because

the government lacked reasonable suspicion to conduct an

undercover investigation of him, the government’s conduct

Was Outrageous and should bar his conviction.’ Petitioner

prevailed on his claim before a divided panel of the court

of appeals. The majority held that petitioner's 1984 order

trom the California bookstore was not evidence of

predisposition and did not furnish reasonable suspicion that

petitioner had committed a crime or was likely to do so.

Pet. App. 22a-23a, 25a-26a. Judge Fagg dissented. He con-

' At about the same me, petitioner ordered a set of sexually explicit

photographs trom a firm that was an undercover tront for the Customs

Service. Those photographs were never delivered. Pet. App. 2a: Pet. 12

> Although petitioner did not make that claim at trial, the court of

appeals entertained it on appeal

4

cluded that reasonable suspicion is not a prerequisite to an

undercover investigation, and that, in any event, the govern-

ment had reasonable suspicion here. /d. at 26a-29a.

On rehearing en banc, the court of appeals adopted the

views of Judge Fagg. The court observed that “[dJue proc.

ess limitations ‘come into play only when the [glovernment

activily in question violates some protected right of the

defendant.’” Pet. App. 3a (quoting Hampton v. United

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

in the court’s view, petitioner did not have a constitutional

right to be free from investigation, the initiation of that in-

vestigation did not violate petitioner’s due process rights.

As to petitioner’s argument that the government needed

reasonable suspicion before investigating him, the court

joined the other courts of appeals that have refused to im.

pose such a requirement. Pet. App. 4a-Sa. The court went

on to find that the government’s conduct in this case was

not Outrageous, because the government simply mailed

surveys, letters, and catalogs to petitioner, and he volun-

tarily responded. In the words of the court, “[t]he postal

inspectors did not apply extraordinary pressure on [peti

tioner]. The inspectors merely invited [petitioner] to pur

chase pornographic material through the mail.” /d. at 5a

Petitioner could have ignored the contents of the mailings.

the court said, so the supposed entreaties to him involved

far less pressure than would have been involved in tace-to

face contacts. /d. at 6a.'

Two judges dissented. Chief Judge Lay stated that peti.

tioner Was not predisposed to commit the charged offense,

so In his view petitioner was entrapped as a matter of law.

Pet. App. 7a-8a. Judge Heaney, the author of the panel

The court hkewrse rejected petitioner's claim that he had been en

trapped as a matter ot law. The court found instead that there was sul

fhoent evidence to warrant the jury's tinding of predisposition. Pe

\pp 6a 7

opinion, reiterated his views that the government's in-

vestigative conduct in this case was Outrageous and that the

government should be required to have reasonable suspi-

cion of criminal activity before commencing an underco\ er

criminal investigation. /d. at 8a-19a.

ARGUMENT

Petitioner renews his claim that because the government

did not reasonably suspect him of criminal activity, the in-

vestigation of him was improper and should have been

deemed “outrageous government conduct” so as to bar his

conviction. Pet. 14-27. The contrary decision of the court

of appeals is correct, however, and is in accord with the

decisions of this Court and every other court of appeals that

has contronted the issue. Consequently, further review is

not warranted.

In United States v. Russell, 411 U.S. 423, 431-432 (1973),

the Court introduced the notion of an outrageous govern-

meni conduct defense and distinguished it from the entrap-

ment defense. In dictum the Court noted that “we may some

day be presented with a situation in which the conduct of

law enforcement agents is so outrageous that due process

principles would absolutely bar the government from in-

voking judicial processes to obtain a conviction,” but the

Court found that neither defense was satisfied in that case.

Three years later, in Hampton v. United States, 425 U.S.

484, 489-490 (1976), a plurality ot the Court expressed doubt

that Outrageous government conduct in the course of an in-

vestigation could ever provide a defense to a criminal de-

fendant. Instead, any due process limitations come into

play, the plurality concluded, only when goverhmental con.

duct violates a defendant’s protected rights. /d. at 490. Two

Justices concurred in the affirmance of Hampton's convic-

tion, but expressed the view that an outrageous government!

6

conduct detense might be open to a defendant in an excep-

tional case. /d. at 492-495 (Powell, J., concurring in the

judgment).

In the wake of Hampton, the courts of appeals have held

that a defendant may prevail on a claim of outrageous

governmental conduct only by showing thai the conduct was

“truly outrageous.” See, e.g., United Siates v. Miller, 891

F.2d 1265, 1267 (7th Cir. 1989) (collecting cases); United

Stuies v. Driscoll, 852 F.2d 84, 86 (3d Cir. 1988). Ofters

of inducement have been held to be proper, because the Due

Process Clause grants law enforcement agencies “wide

leeway” in conducting their investigations of crime. United

States v. Kaminski, 703 &.2d 1004, 1009 (7th Cir. 1983).

No constituuionally protected right of petitioner was

violated in this case. Petitioner had no right to possess child

pornography, Osborne v. Ohio, 1108. Ct. 1691 (1990), and

he had no right to be free from investigation, e.g., United

States \. Traver, 898 F.2d 805, 808 (D.C. Cir.), cert. demed,

111 S. Ct. 113 (1990). Hence, he can prevail only if he can

show that the government’s conduct in sending him a few

letters, surveys, and catalogs was so Ouirageous as to of-

fend the notion of due process. As the court of appeals aptls

Observed, Pet. App. 6a, those actions were far less press-

ing inducements than those that typically occur between two

persons in face-to-face meetings. This very type of conduct

was held not to be outrageous in United States \. Driscoll,

852 F.2d at 85-87.

The decision below also is tn accord with the unanimous

view of other circuits that the government need not have

reasonable suspicion of criminal activity before beginning

an undercover investigation of a particular individual.

United States v. Luttrell, No. 87-5303 (9th Cir. Jan. 23,

1991) (en bane), slip op. 780-751; United States \. Driscoll,

852 F.2d at 86-87; United States \. Jenretie, 744 F.2d 817,

S24 & n.13 (D.C. Cir. 1984), cert. denied. 471 U.S. 1099

(1985); United States v. Gamble, 737 F.2d 853, 860 (10th

Cir. 1984); United States v. Jannoiti, 673 F.2d 578, 608-609

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

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

denied, 449 U.S. 956 (1980); see also United States v.

Thoma, 726 F.2d 1191, 1198-1199 (7th Cir.), cert. denied,

467 U.S. 1228 (1984).* Those courts recognize that as long

as the conduct of the investigation does not violate due proc-

ess, the absence of reasonable suspicion at the outset of the

investigation does not bar the conviction of someone who

commits a crime. Since the investigation in this case did not

violate petitioner’s due process rights, he cannot escape

liability on the ground that the postal inspectors might not

have had reasonable suspicion of his criminal activity at the

outset of their investigation. °

* Unued States \. Hunt, 749 F.2d 1078 (4th Cir. 1984), cert. denied,

472 LS. 1018 (1985), on which petitioner relies, Pet. 17, does not sup-

port his claim. In that case, the court of appeals said that, assuming

that an outrageous conduct defense exists, the record showed that the

conduct of the investigators “was hardly so ‘outrageous| |’ * * * as to

preclude a conviction.” 749 F.2d at 1087 (citation omitted). The court

went on to note that information sent to the FBI created a reasonable

basis for the investigation, but nowhere did the court suggest that such

a basis was a prerequisite to a valid investigation.

In the “questions presented” portion of his petition, petitioner lists

several other issues that this case purportedly raises. He has not separate-

ly addressed any of those additional issues in the body of his petition,

however, so we have not responded to them.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, Il

Assistant Attorney General

Louts M. FISCHER

Altorney

NIARCH 199]

HOVERNMENT PRINTING OFFICE 1991 — 282 06120425