# Amicus Curiae Brief — Jacobson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 540

## Text

@ all
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

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0072%3A10. Public record. Not legal advice.