Amicus Curiae Brief — Jacobson v. United States

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No. 90-1124 Supremes Court, US

aia __ sain &.. .-. LED

JUN 19 199)

IN THE

Supreme Court of the United Stee

OCTOBER TERM, 1990

<> —

KEITH JACOBSON,

Petitioner,

—V.—

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARITO THE UNITED STATES ~

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, NEBRASKA CIVIL LIBERTIES

UNION, AND THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS,

IN SUPPORT OF PETITIONER

Bennett L. Gershman

(Counsel of Record)

Pace University School of Law

78 North Broadway

White Plains, New York 10603

(914) 422-4255

Steven R. Shapiro

John A. Powell

William B. Rubenstein

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

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TABLE OF CONTENTS

Page

peo es ii

Ee l

STATEMENT OF THE CASE ............... 2

SUMMARY OF ARGUMENT ............... 3

EE 5

I. DUE PROCESS PROHIBITS THE USE

OF UNDERCOVER "STING" OPERA-

TIONS ABSENT SOME REASON TO

BELIEVE THAT THE TARGETED IN-

DIVIDUAL IS OTHERWISE LIKELY TO

ENGAGE IN ILLEGAL ACTIVITY ...... 5

Il. ACTIVITY PROTECTED BY THE

FIRST AMENDMENT MAY NOT PRO-

VIDE INDIVIDUALIZED SUSPICION

TO TARGET A PERSON FOR AN

UNDERCOVER "STING" OPERATION ... 13

Il. PETITIONER WAS ENTRAPPED AS A

MATTER OF LAW WHEN THE GOV-

ERNMENT, WITHOUT INDIVIDUAL-

IZED SUSPICION THAT HE WAS

LIKELY TO ENGAGE IN ILLEGAL

ACTIVITY, TARGETED HIM WITH

TWELVE SEPARATE MAIL SOLICITA-

TIONS FROM FIVE SEPARATE

GOVERNMENT-CREATED _ ENTITIES

OVER A PERIOD OF TWO AND ONE-

HALF YEARS, TO INDUCE HIM TO

PURCHASE A GOVERNMENT-

MANUFACTURED PORNOGRAPHIC

i . +isseebebee dene ees spe 16

I PT Te Te ere 20

TABLE OF AUTHORITIES

Page

Cases

Bolger v. Youngs Drug Products Corp.,

> US. GE Cie wesc t0e00ccorren eee 15

Casey v. United States,

BO Uae GER CHD ccccctccncceseesseeeee 16

Cox v. Louisiana,

ete fF) | ererrrrrr eo 15

Draper v. United States,

Soe US. Tae CHRO) occ ccccescesvss eee 6

Hampton v. United States,

SS US. GEG CIPD cc ccsccsvteunewe 5, 10, 17

- Katz v. United States,

Jee US. BEF CST) on co oc 0 0 0 uses eee )

Kolender v. Lawson,

463 US. BiB CIR) occ tecéecedenee eee 5

Lamont v. Postmaster General,

551 US. TG CHRGD cc csevcseccs see 13

McNabb v. United States,

ee fo eee eT 5

Olmstead v. United States,

20) US. GB CHD. occ oncvedsseeeeen eee 9

Osborne v. Ohio, :

_ US. _, SID GAR. OGG8 CHPeee sv cde ccecwcss 14

Paris Adult Theatre I v. Slayton,

413 US. @ GibGee.. o cbc cab tcnseuesbencnees sc 14

Raley v. Ohio,

363 US, Gir Geen caccanvacbavetsanewas< 5, 15

Page

Rochin v. California,

i. cee cceues 5

Sherman v. United States,

356 U.S. 369 (1958) .............. 5, 10, 11, 16, 17

Sorrells v. United States,

BED occ ccc cccccce 5, 11, 16, 17

Stanley v. Georgia,

gw ccc cc cccccces 13, 14, 15

United States v. Becker,

Ge Pum baw Cae Cit. 1953)... wc ccc ccc ccc 8

United States v. Chin,

No. 90-1503 (2d Cir. May 2, 1991) ...... 0.2.2... 12

United States v. Dion,

762 F.2d 674 (8th Cir. 1985) ............... 11, 19

United States v. Gamble,

737 F.2d 853 (10th Cir. 1984) .............. 11, 12

United States v. Jannotti,

673 F.2d 578 (3d Cir.)(en banc),

cert. denied, 457 U.S. 1106 (1982) ............. 9, 11

United States v. Jenrette,

744 F.2d 817 (D.C.Cir. 1984), .

cert. denied, 471 U.S. 1099 (1985) .............0.. 12

United States v. Kaminski,

703 F.2d 1004 (7th Cir. 1983) ................. 10

United States v. Lard,

734 F.2d 1290 (8th Cir. 1984) ............ ,. 11, 19

United States v. Luttrell,

923 F.2d 764 (9th Cir. 1991)(en banc) ........... 12

***

United States v. Myers,

527 F.Supp. 1206 (E.D.N.Y. 1981),

aff'd, 692 F.2d 823 (2d Cir. 1982),

cert. denied, 461 U.S. 961 U.S. (1983) .......-...-. 4

United States v. Russell, .

421 UD, GRD CIGTS) onc ccc ccc cece ccccces passim

United States v. Sherman, '

200 F.2d GBD (1GSZ) 2. ww ecw c ecw c cre cceenes 19

United States v. Thoma,

726 F.2d 1191 (7th Cir.),

cert. denied, 467 U.S. 1228 (1984) ......... 11, 17, 19

United States v. Townsend,

555 F.2d 152 (7th Cir.),

cert. denied, 434 U.S. 897 (1977)... 6.6.52 eee eee 18

United States v. Trayer,

898 F.2d 805 (D.C.Cir.),

cert. denied, 111 S.Ct. 113 (1990) ..........-445- 12

United States v. Twigg,

588 F.2d 373 (3d Cir. 1973) ........0--22e eee 6, 11

United States v. Wiegand,

812 F.2d 1239 (9th Cir. 1987) .........--2505e- 17

Yick Wo v. Hopkins,

| i) | .. eee 5

Statute

18 U.S.C. §2252(a)(2) .......--- errs ,... 16

iv

Other Authorities

Department of Justice,

Office

of the Attorney General,

"Attorney General’s Guidelines

on FBI Undercover Operations,"

reprinted in Law Enforcement

Undercover Activities: Hearing

before the Select Comm. to Study

Law Enforcement Undercover

Activities of Components of the

Dep't of Justice, U.S. Senate,

oo 6, 7

Department of Justice,

Office of the Attorney General,

"Attorney General’s Guidelines

on Criminal Investigations of

Individuals and Organizations,"

reprinted in Law Enforcement

Undercover Activities: Hearing

before the Select Comm. to Study

Law Enforcement Undercover Activities

of Components of the Dep't of Justice,

U.S. Senate, 97th Cong., 2d Sess. (1982) ...... 7, 8, 17

_ Gershman, “Abscam, The Judiciary

and the Ethics of Entrapment,”

ED Gnd. TIE Gea We vce ceccdecsceses 8

INTEREST OF AMICT

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly 300,000 members dedicated to the principles of

liberty and equality embodied in the Constitution. In

support of those principles, the ACLU has appeared be-

fore this Court on numerous occasions, both as direct

counsel and as amicus curiae. The Nebraska Civil Liber-

ties Union is one of its statewide affiliates. This case

raises fundamental questions about the constitutional

limits on the state’s power to investigate its citizens. Its

proper resolution, therefore, is a matter of direct organi-

zational concern to the ACLU.

The National Association of Criminal Defense Law-

yers (NACDL) is a District of Columbia nonprofit cor-

poration with a nationwide membership of more than

5,000 lawyers and 25,000 affiliate members. The

NACDL was founded over twenty-five years ago to pro-

mote, study and advance the knowledge of criminal

defense law, and to encourage the integrity, independ-

ence and expertise of defense lawyers. Among the

NACDL’s stated objectives is to promote the proper

administration of criminal justice. Consequently, the

NACDL is concerned with protecting individual rights

and with improving criminal law, its practices and proce-

dures. In furtherance of that organizational objective,

NACDL strives to ensure that the government’s conduct

of undercover "sting" operations does not employ meth-

ods that violate the Due Process Clause, or that consti-

tute entrapment as a matter of law.

' Letters of consent to the filing of this brief have been lodged with

the Clerk of the Court pursuant to Rule 37.3.

]

STATEMENT OF THE CASE

Keith Jacobson is a 57 year old resident of Newman

Grove, Nebraska, who lives on a farm, supports his eld-

erly parents, was a war hero, and had prior to this case

an unblemished record save for a driving offense over

thirty years ago. He was targeted by the government for

an undercover “sting” operation because his name was

discovered on a bookstore’s mailing list as having pur-

chased two nudist magazines -- the receipt of which did

not violate any law -- and a brochure listing stores sell-

ing sexually explicit material. Although the government

had no information that Jacobson had ever ordered or

advertised for any child pornography, had ever pur-

chased child pornography or produced child pornogra-

phy, or was likely to engage in the receipt or distribution

of child pornography, the government launched a two

and one-half year operation involving twelve solicitations

from five separate government-created entities in order

to entice Jacobson to purchase a magazine depicting

child pornography, which he eventually did, and for

which he was prosecuted and convicted.

A panel of the Eighth Circuit reversed his conviction

with one judge dissenting, holding that Jacobson was en-

trapped as a matter of law. United States v. Jacobson,

893 F.2d 999 (8th Cir. 1990). The majority concluded

that before launching an undercover “sting” operation

aimed at a specific individual, the government must have

a reasonable suspicion based on articulable facts that the

target had committed a similar crime in the past or was

likely to commit such a crime in the future. Otherwise,

"government agents [could] target entire groups of peo-

ple without specific justification, hoping to uncover some

individual who is predisposed to commit crime if given

enough opportunities to do so." /d. at 1001. Thus, the

panel concluded, any evidence that Jacobson was predis-

posed to engage in criminal activity was tainted by the il-

legal targeting.

Upon rehearing en banc, the court of appeals va-

cated the panel’s decision and affirmed the conviction.

United States v. Jacobson, 916 F.2d 467 (8th Cir. 1990).

The court, with Chief Judge Lay and Judge Heaney dis-

senting, held that Jacobson had no constitutional! right to

be free of investigation, and that there is no requirement

that the government have a reasonable suspicion based

on articulable facts before targeting an individual with

an undercover "sting" operation. The court further held

that the government merely presented Jacobson with op-

portunities to purchase child pornography, and the ques-

tion of his predisposition was properly left to the jury.

This Court granted certiorari, |imited to the question

of whether a defendant has been entrapped as a matter

of law when the government, having failed in several at-

tempts to entice him to engage in illegal activity over a

two year period, and in violation of their own guidelines

for the conduct of undercover operations, finally induces

the defendant to receive child pornography through the

mails.

SUMMARY OF ARGUMENT

Undercover "sting" operations can be a useful law

enforcement tool. They are also easily prone to abuse.

It is important, therefore, for this Court to hold that

such operations cannot be commenced absent some indi-

cation that the targeted individual is likely to engage in

illegal activity. This minimal restraint is implicit in the

notion of fundamental fairness embodied in the Due

Process Clause. It also flows directly from what Justice

Brandeis described as the “right to be let alone.”

The government argues that its investigatory powers

are unrestricted by any requirement of particularized

suspicion. However, the FBI’s own internal guidelines

carefully provide that undercover operations may not be

undertaken absent a “reasonable indication" that the tar-

3

geted individual has engaged, is engaged, or is likely to

engage in similar illegal activity. Alternatively, the

guidelines state that the undercover operation must be

"structured" to insure that it will only attract persons

otherwise predisposed to engage in the illegal activity

under investigation.

In making this determination, the government may

not rely on constitutionally protected activity to launch

an undercover operation. Thus, conduct that is pro-

tected by the First Amendment, such as the right to

read, to observe, and to fantasize, may not be used as

the basis for interfering with an individual’s liberty and

autonomy.

The record in this case leaves little doubt that peti-

tioner was entrapped as a matter of law into purchasing

child pornography. Absent any basis to suspect that he

was likely to engage in illegal activity, the government

targeted him in twelve separate mail solicitations emana-

ting from five different fictitious government-created

entities, over a two and one-half year period, to induce

him to engage in activity that was entirely legal when the

government commenced its operation and only became

subject to criminal sanctions during the course of the

prolonged undercover operation.

There is every reason to believe, as the dissent be-

low observed, that petitioner was enticed by the govern-

ment’s persistence into illegal activity that he had never

committed before, and would not have committed this

time, had the government merely left him alone. Such

patent overreaching cannot be reconciled with the Due

Process Clause.

ARGUMENT

I. DUE PROCESS PROHIBITS THE USE OF

UNDERCOVER "STING" OPERATIONS ABSENT

SOME REASON TO BELIEVE THAT THE TAR-

GETED INDIVIDUAL IS OTHERWISE LIKELY

TO ENGAGE IN ILLEGAL ACTIVITY

The concept of due process acts as a constitutional

check on the the government’s power to investigate and

prosecute individuals suspected of illegal activity by in-

voking "(t]he awful instruments of the criminal law,"

McNabb v. United States, 318 U.S. 332, 343 (1943).

Thus, government conduct that is brutalizing, Rochin v.

California, 342 U.S. 165, 172 (1952); entrapping, Raley v.

Ohio, 360 U.S. 423, 437-39 (1959); discriminatory, Yick

Wo v. Hopkins, 118 U.S. 356 (1886); or standardless,

Kolender v. Lawson, 461 U.S. 352, 358 (1983), violates

due process.

So far, this Court has not elaborated on the scope of

due process protection available to targets of undercover

Operations. However, on several occasions the Court has

Suggested, albeit in dicta, that the government’s use of

artifice as an investigative tool is properly subject to due

process limitations. See, e.g., United States v. Russell, 411

U.S. 423, 431-32 (1973)("[W]e may some day be pre-

sented with a situation in which the conduct of law en-

forcement agents is so outrageous that due process prin-

ciples would absolutely bar the government from invok-

ing judicial processes to obtain a conviction ... .");

Hampton v. United States, 425 U.S. 484, 495 n.7 (1976)

(Powell, J., concurring)(suggesting that due process might

be violated where "[pJolice overinvolvement in crime . . .

reach[es] a demonstrable level of outrageousness"). See

also Sherman vy. United States, 356 U.S. 369 (1958); Sor-

rells v. United Siates, 287 U.S. 435 (1932).

These expressions reflect two complementary con-

cerns: one is the fear of prosecutorial overreaching; the

wn

other is our nation’s abiding belief in the presumptive

right of every individual to lead his or her life free of

government harassment. Amici do not suggest that law

enforcement personnel may not target an individual for

an undercover operation absent the probable cause that

would be required under the Fourth Amendment for an

arrest. See Draper v. United States, 358 U.S. 307 (1959).

However, some factual predicate is surely necessary as a

safeguard against the government’s arbitrary use of law

enforcement power in the investigative context. See

United States v. Twigg, 588 F.2d 373, 381 n.9 (3d Cir.

1973)(lack of factual justification for soliciting persons

with no apparent criminal intent an important factor in

finding due process violation).

The government itself has recognized the need for

an individualized factual predicate before launching an

undercover operation that encourages persons to engage

in illegal activity. Indeed, the government has imposed a

requirement of reasonableness before selecting targets

for such operations. The Department of Justice has pro-

mulgated comprehensive guidelines "to establish clear

and workable procedures for the authorization and re-

view of undercover operations at appropriate levels in

both the FBI and the Justice Department." Department

of Justice, Office of the Attorney General, "Attorney

General’s Guidelines on FBI Undercover Operations" 1

(Press Release Jan. 5, 1981). The Guidelines provide

that no undercover operation offering inducements to

illegal activities is to be approved unless:

(a) There is a reasonable indication, based

on information developed through inform-

* The Guidelines purport to be "significantly more restrictive than

those required by the law of entrapment or the constitutional

principles of due process." /d. The government’s own evaluation of

the scope of due process protection in the investigative context is

obviously self-serving and of no legal significance.

6

ants or other means, that the subject is en-

gaging, 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 opportu-

nity, or brought to it, are predisposed to

engage in the contemplated illegal activity.

Department of Justice, Office of the Attorney General,

"Attorney General’s Guidelines on FBI Undercover

Operations" 16 (Dec. 31, 1980), reprinted in Law

Enforcement Undercover Activities: Hearing before the

Select Comm. to Study Law Enforcement Undercover

Activities of Components of the Dep't of Justice, U.S.

Senate, 97th Cong., 2d Sess. 86, 101 (1982)(emphasis

added)(hereafter Senate Hearings).

Elaborating on the need for a reasoned basis before

targeting individuals or organizations, the Department's

Guidelines further state:

A key principle underlying these practices,

and reflected in these Guidelines, is that

individuals and organizations should be free

from law enforcement scrutiny that is under-

taken without a valid factual predicate and

without a valid law enforcement purpose.

Department of Justice, Office of the Attorney General,

"Attorney General’s Guidelines on Criminal Investiga-

tions of Individuals and Organizations" 1 (Dec. 2, 1980),

reprinted in Senate Hearings, at 121... Further, consistent

* Moreover, Guidelines established by the United States Postal In-

spection Service requires that undercover “sting” operations be direc-

ted only at those persons whose names appeared independently on at

least two lists acquired from the following sources: mailing lists

seized by postal inspectors in separate child pornography investiga-

(continued...)

7

with its reasonableness requirement, the Guidelines also

limit the duration of an undercover operation initially to

six months. Senate Hearings at 120.

The principle embodied in the Guidelines as well as

in the Due Process Clause -- that the government target

only those persons who have shown a willingness to en-

gage in crime, are currently engaged in crime, or are

about to commit a crime -- is not a novel concept. It

“derives from a spontaneous moral revulsion against

using the powers of government to beguile innocent,

though ductile persons into lapses which they might

otherwise resist. Such an emotion is out of place, if they

are already embarked on conduct morally indistinguish-

able and of the same kind." United States v. Becker, 62

F.2d 1007, 1009 (2d Cir. 1933)(L. Hand, J.).

There is little doubi that the government has ample

ability to generate crime by inducing individuals selected

at random to violate the law. But it should be equally

clear that the Constitution does not permit integrity tests

of randomly selected citizens -- whether chosen from

mailing lists, voter registration lists, or even telephone

directories. See Gershman, "Abscam, The Judiciary and

the Ethics of Entrapment," 91 Yale LJ. 1565 (1982).

Such random solicitation without individualized suspicion

* (...continued)

tions; incoming child pornography seized by the United States Cus-

toms Service; programs conducted by the FBI; investigations of mail

order dealers of child pornography conducted by metropolitan police

departments and state police agencies; or Postal Inspection Service

regional testing programs. Trial transcript at 95, 97, 146-47. In the

instant case, petitioner's name appeared on only one mailing list. His

name was not on a mailing list involving incoming child pornography

seized by the United States Customs Service. His name was not

obtained from any program conducted by the FBI. His name was not

on any list acquired from child pornography dealers during investiga-

tions conducted by metropolitan police or state police agencies. His

name was not acquired from the Postal Inspection Service during

regional testing programs.

does not implicate merely a prosecutorial policy judg-

ment about effective crime control to which the judiciary

should defer. See United States v. Russell, 411 U.S. at

435 ("The execution of the federal laws under our Con-

stitution is confided primarily to the Executive Branch of

the Government, subject to applicable constitutional and

Statutory limitations and to judicially fashioned rules to

enforce those limitations"). Such conduct is a gross vio-

lation of the “right to be let alone -- the most compre-

hensive of rights and the right most valued by civilized

men." Olmstead v. United States, 277 U.S. 438, 478

(1928)(Brandeis, J., dissenting).

Indeed, such unjustified intrusions, undertaken with-

out the safeguards of a warrant, cf. Katz v. United States,

389 U.S. 347 (1967)(requiring a warrant for electronic

eavesdropping), not only violate an individual’s privacy

and autonomy, but can become a tool of political op-

pression. United States v. Jannotti, 673 F.2d 578, 612-13

(3d Cir.)(Aldisert, J., dissenting). Nor is the govern-

ment’s conduct constitutionally validated because it may

succeed in inspiring some persons to engage in illegal ac-

tivity. Due process is offended because the investigative

methods for which immunity is claimed create an unrea-

sonably high risk that innocent persons will be victim-

ized." In this case, petitioner was solicited twelve sepa-

rate times by five separate government-created entities

over a two and one-half year period before he finally

succumbed, and purchased a magazine.

In short, the government’s conduct in pursuing peti-

tioner in this relentless fashion is offensive to notions of

fundamental fairness. The net result of its investigatory

tactics is that the government has used its scarce re-

“See United States v. Myers, 527 F.Supp. 1206, 1225 (E.D.N.Y.

1981)(noting that three legislators brought to federal agents during the

"Abscam" investigation rejected the bribe offers), aff'd, 692 F.2d 823

(2d Cir. 1982), cert. denied, 461 U.S. 961 U.S. (1983).

9

sources to produce an unwitting, government-fashioned

criminal who would probably have continued to mind his

own business as a law-abiding citizen had the govern-

ment simply left him alone. See United States v. Kamin-

ski, 703 F.2d 1004, 1010 (7th Cir. 1983)(Posner, J., con-

curring)("If the police entice someone to commit a crime

who would not have done so without their blandish-

ments, and then arrest him and he is prosecuted, con-

victed, and punished, law enforcement resources are

squandered 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 instead in

the entirely sterile activity of first inciting and then pun-

ishing a crime").

As Judge Heaney observed in his dissent below:

[A]il the time, effort, expense, and ingenuity

invested in apprehending Jacobson yielded

only a single conviction of a single individual

for the receipt of a single 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 purchas-

ers and did nothing to further the goal of

preventing the sexual exploitation of minors.

916 F.2d at 476. In short, the government has violated

its own rules, pushed beyond the outer limits established

by due process, and now asks this Court to invoke princi-

ples of judicial deference that would immunize its be-

havior from any meaningful constitutional review.

Concededly, "criminal activity is such that stealth and

Strategy are necessary weapons in the arsenal of the po-

lice officer." Sherman v. United States, 356 U.S. at 372.

See United States v. Russell, 411 U.S. at 432; Hampton v.

United States, 425 U.S. at 495-96 n.7 (Powell, J., concur-

10

ring). Certain crimes, such as contraband offenses and

official corruption, could not be investigated effectively

without the use of undercover methods of infiltration

and deceit. But a distinction should be drawn, as the

government’s Guidelines do, between an undercover op-

eration that is carefully structured to provide an opportu-

nity only for those persons already bent on illicit be-

havior to be drawn into criminal activity and those

undercover operations, like the one at issue in this case,

that are not so carefully structured. Compare United

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

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

467 U.S. 1228 (1984); United States v. Jannotti, 673 F.2d

578 (3d Cir.)(en banc), cert. denied, 457 US. 1106

(1982); with United States v. Dion, 762 F.2d 674 (8th Cir.

1985); United States v. Lard, 734 F.2d 1290 (8th Cir.

1984); United States v. Twigg, 588 F.2d 373.

The spectre of an undercover operation that actively

and persistently targets persons who are suspected of no

illegal activity runs afoul of the government’s own

Guidelines and constitutes ar. abuse of power. Sherman

v. United States, 356 U.S. 369; Sorrells v. United States.

287 U.S. 435. This is especially true in the context of

anti-pornography operations, where the government’s use

of psychological manipulation through “mirroring,” and

feigned intimacy from imposter "pen pals,” incites and

legitimizes an interest in child erotica that may not have

previously existed, or that may have existed but would

have laid dormant without the government’s active inter-

ference.

Requiring a reasoned basis before the government

may underake a "sting" operation against a targeted in-

dividual would not "introduce[ ] an unmanageably sub-

jective standard," United States v. Russell, 411 U.S. at

435, into the conduct of investigations or into the judici-

ary’s decisionmaking process. Indeed, under the Guide-

lines, the government itself has promulgated a reasona-

1!

bleness standard for the conduct of undercover opera-

tions. Moreover, in contrast to a less clearly defined

“outrageous” standard, see id. at 431, a reasonableness

standard is quite familiar to courts reviewing issues un-

der the Fourth Amendment. There is no reason to think

that such a requirement as a matter of due process in

the investigative context would undermine law enforce-

ment or make judicial review more problematic.

To be sure, in the absence of any pronouncement by

this Court, some federal courts of appeals that have con-

sidered the issue have rejected 2 “reasoned basis" or in-

dividualized suspicion requirement under the Due Proc-

ess Clause.’ But no court has held or would hold that

there are no limits on government's power to initiate in-

vestigations. Thus, the rejection of a "reasoned basis”

Standard merely begs the question as to the appropriate

methods that law enforcement may use in the conduct of

investigations. Moreover, as noted above, these deci-

sions are inconsistent with the federal government’s own

Guidelines for the conduct of undercover operations and

with the notions of fundamental fairness embodied in

the Due Process Clause.

* See, ¢.g., United States v. Chin, No. 90-1503 (2d Cir. May 2, 1991)

(rejecting “individualized suspicion” requirement on law enforcement

officials in context of undercover investigation of violations of child

pornography statutes); United States v. Luttrell, 923 F.2d 764, 764 (%th

Cir. 1991)(en banc)(rejecting “reasoned grounds” requirement for in-

vestigation of counterfeit credit card transactions); United States v.

Jenrette, 744 F.2d 817, 824 n.13 (D.C.Cir. 1984)(rejecting reasonable

suspicion requirement in context of undercover investigations of public

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

737 F.2d at 860 (rejecting "reasonable suspicion" requirement in con-

text of undercover investigation of insurance fraud). Absent any guid-

ance from this Court, the federal circuits have concluded, as did the

court below, that a person "has no constitutional right to be free of in-

vestigation.” 916 F.2d at 469; United States v. Trayer, 898 F.2d 805,

808 (D.C.Cir.), cert. denied, 111 S.Ct. 113 (1990).

12

Il. ACTIVITY PROTECTED BY THE FIRST AMEND-

MENT MAY NOT PROVIDE INDIVIDUALIZED

SUSPICION TO TARGET A PERSON FOR AN

UNDERCOVER "STING" OPERATION

The government commenced its undercover investi-

gation of petitioner following its seizure of a bookstore’s

mailing list showing that petitioner had ordered two

nudist magazines and a brochure listing stores selling

sexually explicit material. There is no claim that receipt

of this material violated any penal statute. Predicating

an undercover operation solely upon activity that is pro-

tected by the First Amendment infringes upon the con-

Stitutional right to read, to observe what one pleases,

and to maintain one’s own inner life without interference

by the government.

A person’s right to receive information and ideas, to

read what one pleases, and to be free from governmen-

tal intrusions into the privacy of one’s thoughts is pro-

tected by the First Amendment and the Due Process

Clause. See Lamont v. Postmaster General, 381 U.S. 301

(1965); Stanley v. Georgia, 394 U.S. 557, 565 (1969).

Writing for the Court in Stanley, Justice Marshall said:

These are the rights that appellant is asser-

ting in the case before us. He is asserting

the right to read or observe what he

pleases -- the right to satisfy his intellectual

and emotional needs in the privacy of his

own home. He is asserting the right to be

free from state inquiry into the contents of

his library. Georgia contends that appellant

does not have these rights, that there are

certain types of materials that the individual

may not read or even possess. Georgia jus-

tifies this assertion by arguing that the films

in the present case are obscene. But we

think that mere categorization of these films

as “obscene” is insufficient justification for

13

such a drastic invasion of personal liberties

guaranteed by the First and Fourteenth

Amendments. Whatever may be the justifi-

cations for other statutes regulating obscen-

ity, we do not think they reach into the

privacy of one’s own home. If the First

Amendment means anything, it means that a

State has no business telling a man, sitting

alone in his own house, what books he may

read or what films he may watch. Our

whole constitutional heritage rebels at the

thought of giving government the power to

control men’s minds.

Id. at 565.

In Stanley, the material was obscene under a valid

Georgia statute; in the instant case, the material did not

violate any statute. Moreover, the government had no

reason to suspect that petitioner had ever or would ever

violate the law. Thus, the government launched its two

and one-half year undercover campaign based solely up-

on petitioner’s receipt of nonpornographic material. By

so doing, the government deliberately exploited petition-

er’s right to personal liberty to think, to feel, and even to

fantasize, see Paris Adult Theatre i v. Slayton, 413 U.S.

49, 67 (1973)("The fantasies of a drug addict are his

own, and beyond the reach of the state"), in order to

determine whether he would be susceptible to under-

cover stimuli, and then repeatedly to encourage him to

violate the law.°

* This case is easily distinguishable from Osbome v. Ohio, __ US.

, 110 S.Ct. 1691 (1990). In Osbome, the defendant was convicted

for the private possession of child pornography that was unprotected

by the First Amendment. Here, the government insists on its right to

launch an undercover “sting” operation based solely on petitioner's

private possession of erotic material that even the government con-

cedes is entitled to constitutional protection.

14

Given the constitutional right to distribute reading

material through the mail, Bolger v. Youngs Drug Products

Corp., 463 U.S. 60 (1983), and the correlative constitu-

tional right to receive it and read it, Stanley v. Georgia,

394 U.S. 557, it is impermissible for the government to

utilize the fact that an individual possesses constitution-

ally protected material or engages in constitutionally pro-

tected activity as the basis for criminal investigation and

ultimate punishment. Raley v. Ohio, 360 U.S. at 438-39

(conviction for refusing to answer question after govern-

ment assurances that person had privilege to refuse to

answer violates due process); Cox v. Louisiana, 379 U.S.

559, 570-71 (1965)(convicting person for illegally demon-

Strating after government assurances that demonstration

was lawful violates due process). In sum, the govern-

ment should not be allowed to turn the constitutional

right to read into a tool of oppression. Such a result

would follow if the government were allowed to use the

fact of petitioner’s name on a mailing list for constitu-

tionally protected materials as the basis for launching an

undercover investigation against him.’

"This Court need not decide whether constitutionally protected

conduct can ever be considered in the decision to launch a govern-

ment investigation. It is sufficient to hold on the facts of this case

that an intrusive, undercover “sting” operation should not be under-

taken solely on the basis of First Amendment activity.

15

III, PETITIONER WAS ENTRAPPED AS A MATTER

OF LAW WHEN THE GOVERNMENT, WITHOUT

INDIVIDUALIZED SUSPICION THAT HE WAS

LIKELY TO ENGAGE IN ILLEGAL ACTIVITY,

TARGETED HIM WITH TWELVE SEPARATE

MAIL SOLICITATIONS FROM FIVE SEPARATE

GOVERNMENT-CREATED ENTITIES OVER A

PERIOD OF TWO AND ONE-HALF YEARS, TO

INDUCE HIM TO PURCHASE A GOVERNMENT-

MANUFACTURED PORNOGRAPHIC MAGAZINE

The evidence below established entrapment as a

matter of law." The government’s numerous and persist-

ent inducements and solicitations of petitioner over a

two and one-half year period, without any reasoned basis

to believe that he was predisposed to engage in illegal

activity, finally succeeded in "implant(ing) the criminal

design in (petitioner’s) mind," United States v. Russell,

411 U.S. at 436; Sorrells v. United States, 287 U.S. at 442,

and rendered his crime “the product of the creative ac-

tivity of law enforcement officials.". Sherman v. United

States, 356 U.S. at 373. See Casey v. United States, 276

U.S. 413, 423 (1928)("The Government may set decoys

to entrap criminals. But it may not provoke or create a

crime and then punish the criminal, its creature")

(Brandeis, J., dissenting).

To begin with, at the time the government launched

the first of its five undercover "sting" operations against

him, petitioner was a law-abiding citizen who was not

suspected of having committed any crime, particularly a

violation of 18 U.S.C. §2252(a)(2)(knowingly receiving a

visual depiction of a minor engaged in sexually explicit

"The government has attempted to characterize the issue in this case

in terms of “outrageous” government conduct rather than entrapment.

In amici’s view, the result is the same no matter which label is ap-

plied.

16

conduct).” There is no claim that the government was

seeking to investigate preexisting criminal activity. Com-

pare United States v. Russell, 411 U.S. 423 (drug labora-

tory); Hampton v. United States, 425 U.S. 484 (drug traf-

ficking), with Sherman v. United States, 356 U.S. 369

(entrapment as a matter of law where government in-

duced previously law-abiding person to obtain drugs);

Sorrells v. United States, 287 U.S. 435 (entrapment de-

fense should have been charged where government agent

induced previously law-abiding citizen to obtain illicit

liquor). There is no claim that petitioner was in the

pornography trade, or that the government suspected

that he was in the pornography trade. See United States

v. Thoma, 726 F.2d 1191 (government informed that de-

fendant involved in producing pedophilia). Nor is there

any claim that petitioner was producing child pornogra-

phy. See United States v. Wiegand, 812 F.2d 1239 (9th

Cir. 1987)(government informed that defendant produc-

ing child pornography). The government knew only that

petitioner had ordered two magazines depicting nude ad-

olescent males, that did not involve sexually explicit or

provocative conduct, and a brochure listing bookstores

that sold similar material. The undercover targeting of

petitioner violated not only the FBI’s Guidelines for the

conduct of undercover operations, but also the Guide-

lines established by the United States Postal Inspection

Service for the conduct of undercover "sting" operations.

Trial transcript at 346.

Over the next two and one-half years,” the govern-

* Indeed, the criminal statute for which petitioner was ultimately

convicted had not even been enacted when the undercover operations

were begun.

° It should be noted that the FBI Guidelines attempt to minimize the

possibility of overly persistent solicitations by limiting the duration of

an undercover operation initially to six months. Sce Senate Hearings

at 120.

17

ment, through the Postai Service, targeted petitioner

with twelve separate mail solicitations sent under the

auspices of five separate fictitious organizations in cr.

to induce petitioner to purchase a sexually explicit

zine, which he eventually did. In the course of its ..0-

paign to entice petitioner, the government engaged in

psychological manipulation through a technique known

as "mirroring," involving solicitations and correspondence

with an imposter "pen pal," in order to stimulate peti-

tioner’s interest in erotic material. Government exhibits

11-14; trial transcript at 342. Petitioner occasionally

evinced interest in the government’s blandishments, but

also demonstrated reluctance. He never ordered any

material advertized by the fictitious "American Hedonist

Society." He did not answer the sexual questionnaire

from the fictitious "Midlands Data Research" organiza-

tion. He did not respond to a letter from the fictitious

"Heartlands Institute for a New Tomorrow." Nor did he

correspond with any individuals who were referred to

him as having “backgrounds and interests similar to

yours." After petitioner ceased corresponding with "Carl

Long," an undercover agent posing as a “pen pal," the

Postal Service, this time using the fifth fictitious entity,

"Far Eastern Trading Company, Ltd.," finally succeeded

-- after two more solicitations -- in inducing petitioner to

order two sexually explicit magazines, for which he was

arrested.

Courts determining a defendant's predisposition

principally examine the extent to which the government

has endeavored to instigate the crime, as well as the

defendant’s background, in order to see “where he sits

on the continuum between the naive first offender and

the streetwise habitue." United States v. Townsend, 555

F.2d 152, 155 n.3 (7th Cir.), cert. denied, 434 U.S. 897

(1977). Courts that have found entrapment as a matter

of law have concluded that the defendant was not merely

given an opportunity to violate the law, but rather, as

here, was encouraged to do so by repeated solicitations

18

after a failure to readily respond. See United States v.

Sherman, 200 F.2d 880 (1952)(entrapment as matter of

law where defendant did not readily respond to govern-

ment’s initial solicitation but did so only after further

solicitation); United States v. Dion, 762 F.2d 674 (8th Cir.

1985)(entrapment as matter of law where government

repeatedly engaged in direct and indirect solicitations

over two year period); United States v. Lard, 734 F.2d

1290 (entrapment as matter of law where defendant ini-

tially resisted government’s solicitation).

The defendant’s character and reputation are also

important factors in determining predisposition. United

States v. Thoma, 726 F.2d at 1197; United States v. Dion,

762 F.2d at 686, 688. The petitioner had an unblem-

ished reputation, a commendable war record, and lived a

quiet life on a farm in Nebraska. As Judge Heaney ob-

served:

Had the Postal Service left Jacobson alone,

he would have, on the basis of his past life,

continued to be a iaw-abiding man, caring

for his parents, farming his land, and mind-

ing his own business. Now he stands dis-

graced in his home and his community with

no visible gain to the Postal Service in the

important fight against the sexual exploita-

tion of children.

916 F.2d at 471 (dissenting opinion).

19

CONCLUSION

For the above reasons, the decision of the United

States Court of Appeals for the Eighth Circuit should be

reversed.

Respectfully submitted,

Bennett L. Gershman

(Counsel of Record)

Pace University School of Law

78 North Broadway

White Plains, New York 10603

(914) 422-4255

Steven R. Shapiro

John A. Powell

William B. Rubenstein

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: June 19, 1991

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