# Opposition Brief — Jacobson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0072%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 503 U.S. 540 ## Text - Suprems Cou, U.S Filk&p . : 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0072%3A03. Public record. Not legal advice.