Transcript

IN THE SUPREME COURT OF THE UNITED STATES

KEITH JACOBSON, Petitioner v. UNITED STATES

No. 90-1124

November 6, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 p.m.

APPEARANCES:

GEORGE H. MOYER, JR., ESQ., Madison, Nebraska; on behalf of the Petitioner.

PAUL J. LARKIN, JR., ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

12:59 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 90-1124, Keith Jacobson against the United States.

Mr. Moyer.

ORAL ARGUMENT OF GEORGE H. MOYER, JR. ON BEHALF OF THE PETITIONER

MR. MOYER: Mr. Chief Justice, and may it please the Court:

In February of 1985 the Government made my client, Keith Jacobson, the target of an undercover sting operation known as the American Hedonist Society. The Government had no reason when it did that to believe that Mr. Jacobson had committed a crime, was planning to commit a crime, or was engaged in a course of criminal conduct.

Between February 1985 and June 1987 the Government targeted Mr. Jacobson in five different and separate undercover operations, the object of each of which was to determine if he was receiving or trading sexually explicit photos depicting children through the mails. After the third operation concluded on October 16, 1986 when Mr. Jacobson broke off correspondence with one Calvin Comfort, the Government's chief witness and a postal inspector masquerading as a Carl Long, the Government had even less reason to believe that Jacobson was likely to commit a crime than it did when it started with the American Hedonist Society more than a year earlier.

Just the same, Jacobson was included in Operation Looking Glass. That was sting number 5 in March of 1987, and was finally, after 28 months of Government effort, induced to receive a single magazine depicting a child engaged in sexually explicit conduct.

I contend that Mr. Jacobson was entrapped as a matter of law. I contend that where the defendant's predisposition to commit the crime charged in the indictment, to engage in criminal conduct, does not appear before Government agents target him. The Government has failed to prove that the defendant is guilty beyond a reasonable doubt. I also contend that where the defendant has been offered numerous opportunities to break the law and he has not done so, the Government should leave him alone.

Entrapment cases decided that, by this court have --

QUESTION: Mr. Moyer, refresh my recollection. Was the jury permitted to find entrapment in this case but did not?

MR. MOYER: Entrapment was submitted to the jury and they did find --

QUESTION: The jury found --

MR. MOYER: -- that the defendant was not entrapped. In other words, there was a jury verdict of guilty, Your Honor.

QUESTION: But you say that it shouldn't have been up to the jury that there was entrapment as a matter of law?

MR. MOYER: There was entrapment as a matter of law, and I say that the jury verdict in this case, Your Honor, is fatally flawed because the Government was permitted to offer to the jury evidence that Mr. Jacobson suffered from a weakness, that he had a sexual desire to look at pictures, sexually explicit pictures of boys, and that he was a homosexual. This is not the subject of the inquiry. The inquiry --

QUESTION: Well, why doesn't that tend to prove that he was disposed to commit the crime? It doesn't have to establish it in its entirety. It's just one element of proving that he was disposed to commit the crime.

MR. MOYER: The Government developed this evidence, Your Honor, through sexual survey, attitude surveys and undercover correspondence with Mr. Jacobson after the Government initially included him in the American Hedonist Society. The cases have always held that the predisposition of the defendant must appear before he begins to interact with the Government agents, before they contact him, before anything at all is done.

QUESTION: Is that what the instructions said to the jury?

MR. MOYER: No, I don't think it is.

QUESTION: Well, what did, was there an objection to the jury charge?

MR. MOYER: There was an objection to the jury charge, Your Honor, and there were instructions offered.

QUESTION: About entrapment?

MR. MOYER: That's right. There was an objection to the jury charge on entrapment and there were instructions offered which would define predisposition and also which would define inducement, and the trial court did not give those instructions.

QUESTION: Well, Mr. Moyer, do you take the position that the Government must always prove predisposition in these entrapment cases by establishing events that occurred before the Government started its sting operation?

MR. MOYER: The cases indicate, Your Honor --

QUESTION: Is that your position?

MR. MOYER: And that is my position.

QUESTION: And isn't that virtually the same, then, as requiring reasonable suspicion or reasonable grounds to believe that this particular individual is suspect?

MR. MOYER: Yes, Your Honor, that is, and I intend to argue that as I proceed with my --

QUESTION: We didn't grant certiorari on that question, I guess.

MR. MOYER: The question was, upon which you granted certiorari, Justice O'Connor, was whether or not he was entrapped as a matter of law. And --

QUESTION: As a matter of law. You think that incorporates your first question as presented on certiorari?

MR. MOYER: Well, the question was, was he entrapped as a matter of law where he does not meet the attorney general's guidelines for inclusion in an undercover operation and where he does not meet the guidelines established by the Postal Service for inclusion in the operation.

QUESTION: If you're correct in your position that the events have to have occurred before the Government sting operation, then I suppose some of these sting operation pawn shops and so forth that are set up in various communities are operating illegally, then, in your view?

MR. MOYER: Not in my view, Your Honor, and I think that that situation can be readily distinguished from the situation where the Government goes out, finds a suspect on a list somewhere, out of the telephone book actually if the Eighth Circuit's opinion is to be followed, and the situation in which the Government so structures the undercover operation that it is reasonably clear that persons who are drawn to the operation are predisposed to commit the crime. For instance --

QUESTION: Well, wait, how did they get him -- they got his name, as I understand it, because of his purchase of material which would not have been illegal at the time he originally purchased it, but which would have been illegal after this act was passed that made --

MR. MOYER: The petitioner does not concede --

QUESTION: You don't concede that, but that's the Government's contention.

MR. MOYER: That's the Government's contention, that's correct.

QUESTION: These, what is it, Bare Boys I and Bare Boys II books that purported to be just books about nudist colonies.

MR. MOYER: Child nudist magazines is the way they were described.

QUESTION: That's right. Suppose we agree with the Government that those books would violate the law later passed. Would you then concede that there was adequate reason to pursue your client?

MR. MOYER: No, Mr. Justice, I would not, for this reason --

QUESTION: Even though the Government would then know he had an appetite for what was, what was illegal?

MR. MOYER: If I may answer your question by an analogy, suppose the Government in the interest of the health of all of us in the United States, particularly those like me who have asthma, banned smoking completely. Now then, would the Government then be permitted under an undercover operation to find the list of Philip Morris customers and offer Philip Morris cigarettes to these customers in a plain brown wrapper?

QUESTION: Well, I think there's a little difference between what you might call a malum prohibitum and a malum in se. I don't think the proper analog would be cigarettes, but perhaps cocaine. If that were originally not illegal and then made illegal, you think the Government could not target people who were known prior users of cocaine?

MR. MOYER: Well, I think this was a malum prohibitum crime here, receive child pornography, or at least that's the way the district court regarded it.

QUESTION: Um-hum.

MR. MOYER: What you're doing there is offering me an example that involves a pernicious substance, and indeed I don't disagree that child pornography is subject to Government control. That isn't my point.

QUESTION: But you don't think it's pernicious?

MR. MOYER: Excuse me?

QUESTION: But you don't think it's pernicious?

MR. MOYER: Child pornography can be pernicious, yes, sir, Your Honor.

QUESTION: But not -- only after it's outlawed?

MR. MOYER: If Your Honor please, my point is that you cannot assume that somebody is going to engage in criminal activity, knowing that it's criminal, just because he has engaged in that activity when it was legal. And the --

QUESTION: It depends on what the activity is. If it's that kind of an activity, just as if it would have been cocaine, I think one may, one may suspect this is a person who does not care that much about societal norms. You don't think that's a reasonable suspicion?

MR. MOYER: If Your Honor please, the substance was not illegal for him to obtain, or that is to say the books were not illegal for him to obtain. Now you're asking me to assume that these books meet the test of the statute and they show a child engaged in a sexually explicit conduct. Nevertheless and irrespective of whether they do or not --

QUESTION: I don't want you to concede that. We're assuming that for purposes.

MR. MOYER: Yeah, for the purposes of the hypothetical. Nevertheless, it was not and it had never been a crime to receive this type of material through the mail, and under the decisions of this Court in Stanley it was not a crime to possess it and the State of Nebraska, it had not adopted a statute making it illegal to possess child pornography until well after this case was tried in the district court for the District of Nebraska in Omaha.

So therefore the Government has to assume from the fact that Mr. Jacobson did something that the Government has to concede, indeed stipulate, did not violate the law, that he will violate the law later. And then after they made that assumption and they targeted him for these undercover operations they offered him opportunities to purchase child pornography, and there is nothing in the evidence or in the record that indicates that he ever did that.

QUESTION: It seems to me you are requiring more than mere suspicion that he is the type of person who would violate the law. You require that they know that he had violated the law before. Is that --

MR. MOYER: That he -- I -- I am sorry.

QUESTION: Is that what you require, that they have to suspect that he has violated the law before?

MR. MOYER: I don't think that the guidelines that were adopted by the attorney general quite go that far. I think subparagraph (a) of those guidelines say that there has to be a reasonable indication based on information developed through informants or other means that the subject is engaging, has engaged, or is likely to engage in illegal activity of a similar type. And I think that is the rule that Judge Heaney was trying to arrive at when he required a reasonable suspicion based upon an articuable fact in his panel opirion.

QUESTION: Well, here it was activity of a si ilar type, if we accept the hypothesis, but it was not yet illegal, and you say that makes the difference?

MR. MOYER: That makes the difference, that the Government is assuming that he will break the law. And then, Your Honors, the Government --

QUESTION: Do you have authority for that proposition?

MR. MOYER: If Your Honor please, I think that the early cases that we cite in our brief all say that before anything at all is done with respect to the Government, with respect to the defendant. Furthermore the Devitt and Blackmar instruction, the standard instruction on entrapment, has stated that same language, and that instruction has been given and given and given and approved repeatedly by numerous of the circuits.

QUESTION: What, what's an example of one of the early cases that you just referred to in your answer to Justice Kennedy?

MR. MOYER: May I answer that, Your Honor, by referring to footnote 3 on page 26 of the brief?

QUESTION: Your brief?

MR. MOYER: Yes, Your Honor. In which we point out, there is a strip cite there, of numerous cases in which the Devitt and Blackmar instruction --

QUESTION: These are all -- none of these are from this Court, are they?

MR. MOYER: Those are not from this Court, Your Honor. These cases are from the circuit courts.

QUESTION: Courts of appeals?

QUESTION: But your point is the Government should have some, some kind of a suspicion that he, that the target is likely to break the law by a certain course of conduct?

MR. MOYER: That's correct.

QUESTION: It isn't that he was likely -- that some time he was engaging in this activity, but he is likely to continue it even though --

MR. MOYER: He knows it's against the law.

QUESTION: -- even though he knows it's illegal?

MR. MOYER: Even though he knows it's illegal. That's correct. Now I think this Court said in the Matthews case that in an entrapment situation where the defendant treated -- pleaded entrapment, that the defendant could -- would -- could consistently take the witness stand and say that I did not intend to commit a crime and that I was induced to commit the crime by the Government, and he would not necessarily be lying when he said that.

And in fact Mr. Jacobson in this case did just that. He took the witness stand and he said the Government induced me to buy this, and I had no idea that I was committing a crime when I did it.

I think that the evidence also reflects, Your Honor, that --

QUESTION: Well, does the statute require a knowing receipt?

MR. MOYER: The statute requires that he know that it is child pornography. There was an --

QUESTION: All right. So I take it, then, the jury just disbelieved that. I mean, that's an element of the offense.

MR. MOYER: The statute, Your Honor, does not require that he know that the receipt is a crime. It only requires that he know he is receiving child pornography.

QUESTION: That he knows that it's child pornography. All right.

MR. MOYER: And we argued that the jury should have been instructed that he had to receive, knowingly receive child pornography, knowing that it was a crime, and the trial court rejected that instruction, so the jury never determined that issue.

QUESTION: Excuse me, if -- he doesn't have to know it's a crime in order to be convicted, right?

MR. MOYER: That is correct.

QUESTION: Well then why --

MR. MOYER: And that is what -- excuse me, Your Honor. That is what the district court ruled. We took issue with that.

QUESTION: Um-hum.

MR. MOYER: With that ruling, and that was a point that we briefed and argued rather strenuously in the Eighth Circuit.

QUESTION: In addition to knowing that it's pornography he has to know that, that it's child pornography, he has to know that it's illegal to receive child pornography?

MR. MOYER: That's right, Your Honor. That's the contention that we made.

QUESTION: You didn't bring that point here, though.

MR. MOYER: That was one of the issues, I think, that we put in our petition for cert.

QUESTION: Well, your petition for certiorari simply says the question you are raising is were, was your client entrapped as a matter of law.

MR. MOYER: That was --

QUESTION: You just lost on your submission. So if the case comes here, I guess this point is against you.

MR. MOYER: I'm sorry, Your Honor, I don't understand the question.

QUESTION: Well, you raised the issue below and you lost on it, that, on the question of knowing illegality.

MR. MOYER: That's correct, Your Honor.

QUESTION: You lost on it. You didn't bring that issue here.

MR. MOYER: I petitioned it here, but cert was not granted on it, I believe.

QUESTION: Oh, okay.

QUESTION: Suppose we agree with the lower court that ignorance of the law is no excuse, which tends to be the rule. Suppose we agree with them. Then the Government -- why does the Government have to show that this is a person who not only acquired child pornography before, but also acquired it before knowing it was in violation of the law? Why does it have to prove that since in order to convict you don't have to prove that he knew it was in violation of the law? All you have to prove is that he received child pornography.

MR. MOYER: Because you run the danger of manufacturing crime and ensnaring people who would otherwise not do what the statute prohibits them from doing except by the Government inducement and the Government persuasion. And I think that's --

QUESTION: So under your position if someone uses marijuana, say in the Netherlands where it's legal, that's irrelevant as to whether he is disposed to use it here? I find that very difficult to accept.

MR. MOYER: I don't mean to suggest that the fact that he has an appetite doesn't have some significance, but what I think that the defense of entrapment has always intended, and what was said in Sorrells, is that the Government must have some reason to believe that he is engaged or willing to commit the crime charged in the indictment. The fact that somebody uses marijuana in Denmark where it's legal, or the Netherlands where it's legal, does not necessarily mean that when they come to the United States they will use it. But when the Government targets them five times and works on them for 28 months they may well induce that to happen, even though --

QUESTION: Well, the question is one of relevance, whether or not -- you're telling us it's just irrelevant.

MR. MOYER: I'm sorry, Your Honor. I don't mean to leave the impression that it is irrelevant. That is of some significance. But I am saying that entrapment has always focused on the willingness of the individual to commit the crime, to engage in a course of criminal conduct, and has not -- I think the case that puts it best, Your Honor, is the Sherman case in which this Court said that the Government may not play on the weakness of an innocent party in order to induce them to commit a crime. And that, of course, is what they are doing here.

They are identifying, through sexual surveys, which they send to the defendant after they begin their undercover operation, whether or not he has a sexual preference for, I think the phrase was preteen sex. And he got a 2 on that, 1 being the most interested and 2 being interested.

QUESTION: How many numbers were there?

MR. MOYER: I think five.

QUESTION: Five?

MR. MOYER: The fifth one is I don't know, and I think the fourth one is I am not interested, and the third one is I am somewhat interested. So they had those two responses. And then they had a letter from him in which he said that his sexual preference was young guys, 18 plus, doing their thing together. And what they focused on was the 2 that said that he was interested in preteen sex or teenage sexuality I think one of them was phrased, and they worked on that. And they repeatedly offered him opportunities to buy child pornography.

I think when you look at the inducement in the case it has always been a requirement that the, in the lower courts, that the defendant show some reluctance to commit the offense. In this case the Government had to prod the defendant to respond to the second sexual attitude survey, then --

QUESTION: Excuse me, I thought he responded to all of these quite promptly, with one --

MR. MOYER: No, sir, Your Honor.

QUESTION: -- exception.

MR. MOYER: No, sir, Your Honor. I don't think that is the case. It's a little confusing in the record, but the exhibits in this case that begin with the 100 number are defendant's exhibits during the cross-examination of the Government's principal witness, who was Calvin Comfort. Defendant's Exhibits 102 and 103 were produced. Now, 102, or, I see, 103 was a blank sexual attitude survey, one that hadn't been filled out, and the Government agent testified that he had gotten that blank sexual attitude survey from the Government agent.

And then Exhibit 102 was a later letter that the Government agent had sent him, posing as a Gerri Ellis of the Heartland Institute for a New Tomorrow, in which she, or that is the Government agent, said, you didn't answer the sexual attitude survey and won't you please help us. We are an organization that believes in sexual freedom and freedom of choice, and we need the --

QUESTION: I thought he wrote that he hadn't gotten the sexual attitude survey. I thought that's what had happened, but then --

MR. MOYER: Excuse me, Your Honor. He did not write that. He never sent that letter to the Government agent. That letter was in his home when the home was searched, and it was in our possession at the trial and we produced it. He typed that on the letter, but then he never sent it. He just sent back the completed sexual attitude survey after they prompted him to send it in. And we, we produced the letter to show that they had prompted him.

Another time that, of course, that he evidenced reluctance was when the American Hedonist Society sent him a list of supposed persons who supposedly had the same sexual interests as he had, and he did not correspond with any of them. At that juncture the Government itself prompted him by initiating the correspondence under the guise of Carl Long.

I think even more significantly, however, was the American Hedonist Society undercover operation. The Hedonist Society had a letter called, The Little Light, a newsletter that he was supposed to get quarterly, and the postal inspector testified that he put his name on the mailing list and that he started to send him the newsletter. And then he was asked what did the American Hedonist Society offer its members, and he responded child pornography.

Now, when they searched Mr. Jacobson's home they didn't find any newsletters, and we didn't. We looked, we couldn't find any ourselves. And apparently he had thrown away all these newsletters which offered child pornography in the form of advertising which the postal inspectors had of course planted in the magazine, and he never responded to one of their ads, although I think the Court does have Exhibit 119(a) in which he did fill out an ad that he wanted to place but again which he never sent to the American Hedonist Society.

So by the time they get down here to this last operation, the Operation Looking Glass in which he finally buys the child pornography, they have tried him three different times and they have been unable to induce him in any of these three different undercover operations to buy child pornography. And if he got eight newsletters, which would be approximately the right number, between the time that he was enrolled in the Looking Glass survey and the time that he was enrolled in the Looking Glass sting and the time that he was enrolled in the Hedonist survey, then he would have been solicited in some way, in some form, for child pornography something like 8 to 11 times.

QUESTION: Did he testify as to the number of times he was solicited and this sort of thing?

MR. MOYER: I don't believe he did, Your Honor. I think we take that inference from the testimony of the Government's agents and their cross-examinations.

QUESTION: He did testify in some other aspects of the case, did he not?

MR. MOYER: He testified, yes, to his, to some other aspects of the case.

QUESTION: You're talking as though each contact was a contact that offered him child pornography, and that's not how I understand the record. Some of the contacts just asked him about his attitudes and he responded to some of those. It wasn't he was offered child pornography 11 times, turned them down, and the Government continued to nag him until he finally bought one. There wasn't an offer every one of those 11 times, was there?

MR. MOYER: No, sir, there was not. But there were at least eight offers, and that is where the Carl Long correspondence was leading, because that's how the Carl Long tactic works. According to the agent who employed it, you try to mirror the personality of the individual with whom you are corresponding in order to find out what their interests are and, if they are willing, to get them to send you child pornography through the mails. And they were unable to get Mr. Jacobson sufficiently interested in the correspondence to even continue to write to the Government agent.

Now, of course, the purpose of all this is plain from the Government's brief and the amicus briefs. They are trying to penetrate the child pornography underground. They are trying to see if this man is a man who collects child pornography and habitually sends it through the mails to other persons who have similar pedophilic interests. And the fact that he didn't continue the Carl Long correspondence is pretty conclusive evidence that he was not a member of the child pornography underground and that he was not trading child pornography with other persons with pedophilic interests.

And at that point we contend that even if there was some evidence at the beginning that he had an interest in this stuff, it was crystal clear to the Government that he had not been breaking the law and was not breaking the law and couldn't be induced to breaking the law after the third sting operation, which was over a year after the first one, and at that point he should have been left alone. And --

Your Honor, I'd like to reserve the balance of my time for rebuttal.

QUESTION: Very well, Mr. Moyer.

Mr. Larkin, we'll hear from you.

ORAL ARGUMENT OF PAUL J. LARKIN, JR. ON BEHALF OF THE RESPONDENT

MR. LARKIN: Thank you, Mr. Chief Justice, and may it please the Court:

The short answer to every argument that petitioner has made here today and in his brief can be found in the two magazines, Bare Boys I and Bare Boys II, that were discovered during the May 1984 search of the Electric Moon. Those magazines are demonstrably not, as the dissent below said and as petitioner has again said here today, mere nudist magazines. On the contrary, those magazines consist almost exclusively of photographs of teenage and preteen boys naked, posing spread-legged in bed or in other poses that graphically focus on their genitalia.

QUESTION: I happened to look through them and most of them are boys standing up all by themselves.

MR. LARKIN: And yet in the covers on both magazines and in several other of the pictures it is clear that what you have is someone who is posed in a picture in order to focus on the genitalia. That is not a mere nudist magazine.

QUESTION: It's different from what your description was, though.

MR. LARKIN: Well, a mere nudist magazine would be, as I am told by the Postal Service, would be a picture, for example, pictures of a nudist colony where you have people, for example, of both genders and all ages in all sorts of activities. These magazines clearly are designed to focus on the genitalia of young boys.

QUESTION: Do you agree that it was not unlawful to purchase them at the time they were purchased?

MR. LARKIN: It was not a violation of Federal law, yes. I do not know, do not believe it was a violation of State law.

QUESTION: May I ask you, since you say that's the short answer to the whole case and since you concede that at that time nothing illegal had transpired, take Justice Kennedy's hypothetical of someone who regularly used marijuana in a foreign country where it was lawful, and you had nothing except that evidence to support the predisposition count if you found the person eventually in possession of marijuana that a Government agent had somehow or other delivered to him. Would that prior evidence be sufficient to establish predisposition?

MR. LARKIN: It's sufficient to allow the question to go to the jury, yes. For example --

QUESTION: It's sufficient to establish it, too, because --

MR. LARKIN: That's right. For example, it was not a violation of Federal law prior to 1970 to consume or possess with the intent to distribute or to distribute LSD. So if a person throughout the sixties was a major dealer in LSD he would have been distributing it at a time when it didn't violate Federal law.

QUESTION: What if he just purchased one item 5 years earlier?

MR. LARKIN: Well, that may not be sufficient to show that he possessed with the intent to distribute, which is what you have to make out before you get to the entrapment defense.

QUESTION: But here we don't have an attempt to distribute. Mere possession is not -- you have to have a parallel example, you have to have an offense consisting of mere possession.

MR. LARKIN: Well, it's receipt, not mere possession that we have here. And what we have here, it's clear when you look at the magazines, is someone who is willing to receive this type of material through the mail.

QUESTION: But of course he hadn't seen the second set of magazines at the time he ordered them.

MR. LARKIN: When you say the second set, I'm not sure which ones you mean.

QUESTION: The ones -- the crime he committed.

MR. LARKIN: That's right.

QUESTION: He had seen the 1984 magazine, but that, he's not being put in jail or punished for that.

MR. LARKIN: That's correct.

QUESTION: He's being punished for a magazine that he ordered without seeing it.

MR. LARKIN: Oh, yes. But there is no, he had no doubt what it was, what it contained. If you looked at page 9 of our brief you'll see we have quoted from the Government exhibit that describes what that magazine contains, and -- it's on the right-hand side and I'll read it to you. The catalog described the contents of the magazine as follows; 11-year-old and 14-year-old boys get it on in every way possible. And I'll leave the rest for the Court to read. There's no doubt that when he ordered GX4, the magazine that led to his conviction, he knew what he was getting through the mails, and he doesn't even claim here in court today that he -- we somehow duped him into believing that what he was receiving was not child pornography.

As I understand his argument, his argument is we somehow duped him into believing that it was legal to receive child pornography. Well, the statute doesn't require us to prove a willful element, which sometimes shows up in other statutes where you have to show someone not only committed acts that were a violation of the law, but knew at the time he committed those acts that it was illegal to do so. This statute doesn't require that. It requires a knowing receipt --

QUESTION: No, I understand that, but I understand your opponent to be arguing that predisposition must rest on some evidence that he was willing to violate the law and had previously, before the Government engaged in the attempt to induce him to engage in this transaction, had previously done something that he thought was illegal. Do you have any cases that are like this in the sense that the prior, that the activity prior to the contact by the Government did not involve any knowledge of illegality?

MR. LARKIN: No, what you're -- if what you're asking is do I have any change in the law cases where on day -- on a certain day something that was not previously illegal became illegal, I don't have any case dealing with that problem. But if, but I think what you have here is not the type of material that is, it can be described as innocuous, as Justice Scalia --

QUESTION: No, you're relying on evidence, and maybe that's enough, of his knowledge after the Government began its program. Prior to the Government's first contact with him there is no evidence that he had ever done anything knowing it to be unlawful, isn't that correct?

MR. LARKIN: That's correct. But that's not required.

QUESTION: And do -- well, I understand, but do you have any cases saying it's not required?

MR. LARKIN: No. No. Because that problem --

QUESTION: So this, whichever way we go we're going to have to make a little new law today.

MR. LARKIN: I suppose, on that point.

QUESTION: Yeah.

MR. LARKIN: Because normally what you have is a situation where someone is engaged in a course of conduct that is known to be illegal, and the question is just whether this person committed the crime because the criminal design was implanted in his head by the Government or committed the crime of his own free will. Now, in this case we think the evidence shows without a doubt that he was predisposed, that a reasonable jury could find that he was predisposed. As I said, those two magazines themselves allow a reasonable jury to find that he was predisposed.

QUESTION: You don't, I take it you are not suggesting that the Government didn't need to have some basis for targeting this man?

MR. LARKIN: Well, I am, I would be willing to defend the proposition, and will do so now if you like, that we don't need a reasonable suspicion before targeting a sting. And I will defend that both in terms of entrapment and in terms of the Constitution.

QUESTION: Is there some -- there is a predisposition requirement, I suppose, but is that satisfied just by the fact that he ultimately commits the crime?

MR. LARKIN: It can be, yes. That it can be in the terms that Judge Hand once used, ready complacence. For example, if the Government sets up --

QUESTION: Well, let's assume in this case they had no evidence, no indication that, any of this evidence until they targeted him and then they finally induced him to buy. That would be enough?

MR. LARKIN: That would be enough. That's exact -- that's not all that different, I think, from the example that Justice O'Connor mentioned of opening up a pawn shop. It's not an uncommon practice to open up a pawn shop to see who is going to bring in stolen items, and there we don't have reasonable suspicion as to any one person.

QUESTION: In fact isn't that a very common practice throughout the country in an effort to find burglar rings and so forth?

MR. LARKIN: Correct. And those sorts of matters don't have a reasonable suspicion focusing --

QUESTION: Well, I know, but that's passive Government conduct. They set up the pawn shop all right, but the only people who come in are people who are interested in doing something. But how about just targeting a person and pursuing him?

MR. LARKIN: Well, Your Honor, this is not the type of targeting and pursuing that the Court had in Sherman, so I'm not really sure it's fair to use it in that aggressive sense. This case is materially different from Sherman, which is the only case where the Court has ever held someone was entrapped as a matter of law.

QUESTION: Well, I ask you again, suppose that they didn't have this evidence of his ordering these magazines before but they just happened to target this man and pursue him. They did, they contacted him time after time. Finally he bought, and I take it -- and your submission is that would be just fine.

MR. LARKIN: That would go to the jury, and it would be up to the jury to decide whether --

QUESTION: Whether he had a predisposition.

MR. LARKIN: Correct. This case, as I started to say, is materially different from Sherman. In Sherman, to use the vernacular, the Government leaned on Sherman and leaned on him hard. You had repeated face-to-face contacts. Here, by contrast, all the contacts are through the mail. There was no more burden on the petitioner than is the burden on anyone who wants to get rid of material they received through the mail they don't want.

QUESTION: Mr. Larkin, is this similar to some of the sting operations involving public officials around the country?

MR. LARKIN: Well, I do not think we have the sort of mailings that go on in public official cases.

QUESTION: Well, you have somebody posing as someone who wants a vote in exchange for financial benefits.

MR. LARKIN: You can have that, and you can have a situation in which you don't have everything happen in the course of a short period of time like you would in the pawn shop example. In the pawn shop example somebody walks in, makes the sale, and that's it. It happened very quickly. In other types of undercover operations it may take longer. It may take longer because the person involved is very cagey. And you can't, I think, criticize the way the investigation is conducted by looking at it on an ex post basis.

This is what the Postal Service knew when they searched the Electric Moon in May of 1984. They knew the petitioner had ordered Bare Boys I and II through the mail, and they knew what was in Bare Boys I and II. If you looked at page 21 of the transcript there's a stipulation to that effect. In addition, Exhibit 1 attached to the affidavit in support of the search warrant application contains a 2-page report summarizing the search of Electric Moon that was sent out by the San Diego postal inspectors.

The Postal Service also knew that people who are interested in this sort of material oftentimes will trade it amongst themselves through the mail, discreetly, because this is a very clandestine opportunity. They will sometimes produce this material themselves using children as the actual actors and victims, and they will sometimes also use this type of material as a means of enticing, seducing, instructing, and then molesting and blackmailing children. The Postal Service --

QUESTION: But there's no evidence that this man did any of those things, is there?

MR. LARKIN: I'm not accusing him of that, but the point is this. You can't --

QUESTION: And probably by the time, by 2 -- after 2 years of investigation the Government was reasonably convinced there was no danger of any of that, wasn't there?

MR. LARKIN: I don't think it's fair to say --

QUESTION: He never, he never mailed any pictures back, he never described that kind of activity, he denied having engaged in that kind of, the pedophilia itself.

MR. LARKIN: Your Honor, the responses here are no more inconsistent with the conclusion that he could have been involved in the production of this material or he could have been involved with child molesting than that he wasn't. The Postal Service didn't know. And what, just as you can't justify a search by the fact that uncovers contraband and thereby retroactively render the search lawful, you can't retroactively, I think, undo the search that discovers, or an investigation that discovers someone has broken the law simply because he hasn't committed an even more heinous crime than you ultimately discover.

The Postal Service just didn't have complete knowledge, Your Honor. The only thing they could do when they had the two magazines in their possession and knew what they contained was engage in these sort of low-key step-by-step contacts to find out if, for example, maybe there was some horrible mistake made and petitioner's name shouldn't have been on the mailing list. So they engaged in this sort of conduct over time. The record doesn't contain eight offers to sell child pornography. The record contains the two, Produit Outaouais by the Custom Service and the magazine that was sent out from the Postal Service saying a part of Project Looking Glass by the Far Eastern Corporation.

They engaged in this conduct in part, I think it's reasonable to infer, to see if petitioner would send them material through the mail, not simply to see if he would purchase it. I mean, after all, petitioner did send one thing through the mail. If you look at his response to the second Carl Long letter you will see he sent the magazine, part of the New York Native, through the mail to Carl Long. So they had a variety --

QUESTION: Is that a -- just out of curiosity, I didn't know about -- is that an illegal mailing?

MR. LARKIN: I do not believe that you could charge the defendant, excuse me, the petitioner in this case with sending that magazine because it didn't contain the types of pictures that you would have. But I think it's fair to say that it would certainly warrant your interest given that -- the magazine itself and the stories that are in it. So I think it's fair to say that what you have here is not by any means a sort of overbearing type of investigation that you had in Sherman.

I mean, the Far Eastern Trading Company that mailed out the brochure and that mailed out the letter beforehand describing the brochure wasn't trying to elicit sympathy. It was trying to sell a product. Calchini, the informant in the Sherman case, was trying to elicit sympathy, and of a type that most people could succumb to. It was a sympathy towards a person who was attempting to go, a cleansing process to get rid of his drug addiction but couldn't do it and was in the agonies of withdrawal. And Sherman wound up breaking the law, and the Court said he was entrapped as a matter of law.

That isn't remotely the type of case we have here. As I said, these contacts are through the mail, they're not face-to-face. There was no indication that he --

QUESTION: What if they had been face-to-face and instead of what is written on paper in the correspondence it had been said orally? Would it be a different case?

MR. LARKIN: No, because you also don't have the reluctance that you did in the Sherman case. He responded rather quickly --

QUESTION: Two and a half years isn't reluctance. Two and a half years of failing to make a purchase of this kind is not reluctance.

MR. LARKIN: No, because the, there was a great deal of time in between these individual contacts. I mean, these contacts didn't occur over the course of a week or 2 weeks. He responded to the survey questions. For example, petitioner is right that Defense Exhibit 102 wasn't sent back through the mails, but the survey was sent back through the mails. It was sent back to HINT. And all these other items were sent back. They didn't indicate that he was reluctant.

At no time did he throw these in the garbage can. At no time did he contact the police. These sort of inducements, if you will, that the Government engaged in here are not this type of inducements that would break down the will of a reasonable person. And unless that's true you don't even have inducement. Even if you do, I think it's fair to say the initial evidence the Government had here, as well as the evidence the Government acquired during the course of this investigation, were ample to raise a jury question on whether or not he was predisposed. And they also, I think, amply satisfied any reasonable suspicion standard that the Court could adopt.

QUESTION: Did they, did the jury instructions define predisposition?

MR. LARKIN: They did not. They talked more in terms of --

QUESTION: How about when there should be evidence of a predisposition?

MR. LARKIN: Well, they didn't say when there had to be evidence of predisposition, but what the jury instructions did say, and they are at pages 11 to 12 of the Joint Appendix, say that the predisposition had to arise before the contacts. So to that extent the instructions were about as favorable to the defendant as I think he would want.

QUESTION: Before -- there had to have been a predisposition before the contacts?

MR. LARKIN: The predis --

QUESTION: The jury must find that there --

MR. LARKIN: They had to find that he was predisposed before the contacts.

QUESTION: Yeah.

QUESTION: Well, then the case does present the question -- I hadn't quite realized -- does present the question of whether legal conduct, you know, with the same -- whether the legal conduct before any contact is sufficient as a matter of law.

MR. LARKIN: Well, if the jury instruction --

QUESTION: It isn't necessarily found. They necessarily have to have relied on the two 1984 --

MR. LARKIN: No, no, not -- because the jury instructions in that respect are probably more favorable to the defendant than they needed be. The important point on predisposition, I think, is this. It's a causation question. The Government can't cause the defendant to commit the crime. If the predisposition arises in a defendant because the Government implanted it in the defendant, then the defendant is not predisposed and he is not guilty.

But you can have a situation where you have an undercover operation that goes on for a long period of time and during this entire course of conduct there is evidence of different types of transactions between the parties and that evidence can be used by the defendant to show that he was forced into committing this and he wasn't --

QUESTION: Or it can be used to show that just because he finally committed the crime that there, that he was, prior to the first contact, predisposed.

MR. LARKIN: Well, that's right. The Government can't lean on you and force you to commit a crime. That's what the entrapment defense is designed to protect. But that's not what we have here. We have a situation here, I think, where the Government's evidence in this case, considered as a whole, raised a legitimate question for the jury to decide on this issue, and that --

QUESTION: Mr. Larkin, if the Bare Boys I and II evidence was not found and they had just sent out general mailers, would there have been entrapment, then, according to instruction number 15 at page 11, because then there would be no evidence that he had the predisposition before the first contact.

MR. LARKIN: No --

QUESTION: So does your whole case depend on Bare Boys I or II, or am I misreading the instruction?

MR. LARKIN: No, I think -- the way I would read that, I think it is best read this way, is the state of mind has to have arisen before that. But you can rely on the evidence that occurs during this course of conduct to determine whether back at the initial point he was predisposed.

QUESTION: There was predisposition.

MR. LARKIN: See, the predisposition may have to arise at that initial point, but that doesn't mean you don't have to, you can't consider or you shouldn't consider all the ensuing evidence. And all the ensuing evidence in this case, I will be ready to admit, confirmed what the Postal Service knew initially. There was reason to suspect that petitioner was willing to purchase child pornography through the mail. And as long as there is a jury question, the district court properly let the case go to the jury, and the Eighth Circuit properly affirmed it.

QUESTION: In other words the -- excuse me.

QUESTION: Go ahead.

QUESTION: In other words the contact can be made even before there is evidence of predisposition?

MR. LARKIN: Yes. If, for example, the Government, in, for example, Justice O'Connor's example, sets up the pawn shop, you have contact before the predisposition arises.

QUESTION: Well, I take it that, I take it that it would be all right for the Government, then, to, without any prior experience with the person, to target that person and in the course of things offer him something and the fellow says, is this legal, and the Government says of course it is, and he buys. Would that be evidence of predisposition?

MR. LARKIN: Well, the fact that he jumped at the opportunity is evidence of predisposition. I mean, if an undercover police officer --

QUESTION: But wouldn't that sort of qualify as leaning on a fellow?

MR. LARKIN: It depends how he did that. The undercover police officer --

QUESTION: He just asked, by the way, I don't want to commit a crime, but is buying this stuff legal, and the Government says sure.

MR. LARKIN: Well, sure, but in the narcotics example --

QUESTION: Well, would that be leaning on him or not?

MR. LARKIN: No. It would not.

QUESTION: So it would, so he, so there wouldn't -- the conviction would stand?

MR. LARKIN: Correct.

QUESTION: But it would be leaning on him if it were a crime of willfulness that he was charged with, wouldn't it?

MR. LARKIN: You wouldn't be able, I think, in that context to make out that he -- you might not be able to make out that he knew it was illegal.

QUESTION: That's funny.

MR. LARKIN: But I don't think it would amount to leaning on him in the sense that I am talking about. It's not leaning on him to mislead him. It's leaning on him to take advantage of his sympathies.

QUESTION: To mislead him to think it's legal when it's illegal? You don't really think the Government can do that, do you?

MR. LARKIN: Well, the Government can't do it if a police officer in uniform says, it's okay to purchase cocaine, go ahead.

QUESTION: Right.

MR. LARKIN: That's a crime for the police officer to do that, because he is encouraging somebody to break the law and he shouldn't. But if it's an undercover officer and the undercover officer says to somebody this is, you know, a new designer drug and it's not yet been listed on the Attorney General's prescription list, prohibited list, in that context the defendant I don't think is able to say the Government misled him into believing that he shouldn't have committed this crime.

QUESTION: Yeah, but it is on the list. It is on the list and he says it isn't.

MR. LARKIN: That's right. Well, that doesn't amount to the type of coercion that the entrapment defense is designed to get at.

QUESTION: All right, but go back --

QUESTION: You just lost me, Mr. Larkin. I think you've gone too far now. That's --

(Laughter.)

QUESTION: Go back to the related question of what it shows about predisposition. If it's a willfulness crime and your only evidence is that before he committed the prior act he said is this -- I am sorry, and your only evidence is that he committed acts which were not unlawful at the time he committed them, that would not be sufficient evidence of a predisposition to commit a willfulness crime, would it?

MR. LARKIN: I think generally not, but it would depend, for example, on the type of action. If it were one, for example, that for some reason was a malum in se or that caused a great deal of social harm I think it would be fair to say that you, in some circumstances you could leave it to the jury. Otherwise someone could make these sort of contacts and with a wink and a nod just say, oh, and it's perfectly legal --

QUESTION: Yeah, but malum in se crimes aren't likely to be willfulness crimes.

MR. LARKIN: Well, that is true, but if there were such a circumstance I wouldn't want to put beyond the possibility that the situation could arise.

QUESTION: It would be a very peculiar circumstance, though, wouldn't it?

MR. LARKIN: That's right.

QUESTION: I mean, that's highly unlikely.

MR. LARKIN: Most cases where you have a willfulness crime you have a situation in which someone has to know he is violating the law, and where someone doesn't know he is violating the law you don't even get to the entrapment defense because the Government wouldn't have proven the basic elements of its burden to show that the person committed the crime. But that isn't this case.

QUESTION: Our previous cases haven't parsed this matter quite so finely, have they, made kind of a minuet out of it. They have simply, in Sherman they identified all the facts which led the Court to conclude there was entrapment as a matter of law, but it didn't go into a lot of discussion of what had to come first.

MR. LARKIN: No, no. And I'm not in any way suggesting the Court has to in this case. This is not a complicated case. The evidence in this case that we introduced throughout the entire course of conduct we think was sufficient to raise a jury question. That's all that has to be decided here, because if you decide there was a valid question for the jury, the district court acted properly in submitting the question to the jury and the Eighth Circuit acted properly in sustaining it.

QUESTION: But, yet, Mr. Larkin, let me just follow up on something you said. First of all, if the evidence that he engaged in a lawful but shabby transaction back in 1984 is not sufficient because you have to prove intent to violate the law, then you would have to also support it by stuff like the language that you called our attention to on page 9 which was shortly before the actual purchase, which does, I have to agree, is very strong evidence of a willingness to violate the law at that time. But you say that must also prove a willingness to violate the law before the Government began its program back in 1985, I guess it was. Isn't that right?

MR. LARKIN: I'm not sure I understand your question.

QUESTION: Well, I think we have all finally distilled the requirement that there must have been evidence of a predisposition to violate the law before the Government's first contact in 1985, which could be established in one of two ways; by the original purchase of a unlawful piece of material, and later by responding to solicitations which were rather, plainly indicated something illegal. But those were way, two and a half years later. And so you have to say in effect from what he did in 1987 you an reasonably infer that back in 1984 he was also then willing to violate the law. That's really what you're saying is that that's a reasonable inference.

MR. LARKIN: Well, I would say you have to, you can make that inference, but I would also add, and I think you have left out all the other evidence that came in between.

QUESTION: Yes, but does any of the other evidence between the original contact by the Government and the final purchase in 1987 contain the same type of graphic indication that it was probably illegal?

MR. LARKIN: I think the purchase from the Customs operation, from Produit Outaouais, comes close, but it is not as graphic as the one from the Postal Service.

QUESTION: And that's, of course, the actual material there is not in the record, is it?

MR. LARKIN: That's right, but what you have is the order --

QUESTION: Right.

MR. LARKIN: -- the way it's described. You don't have the actual material.

QUESTION: And when was that?

MR. LARKIN: That was in, I think, March of 1987.

QUESTION: Well, so there must be, there must be some evidence -- I guess the judge has to be convinced that there's enough evidence to show a predisposition prior to the first contact, but that evidence doesn't have to be evidence of facts or conduct prior to the contact?

MR. LARKIN: Correct. Correct.

QUESTION: And it -- well, that answers it. In other words the Government doesn't have to know of that evidence at the time that it makes the contact?

MR. LARKIN: Correct.

QUESTION: I thought you said you were, you didn't concede that there has to be evidence of predisposition before the first contact. I thought you said you were willing to take that on but you don't really think that's essential.

MR. LARKIN: It's certainly not essential.

QUESTION: What do you do about the pawn shop? The Government sets up a pawn shop and I see the pawn shop, I have no predisposition. I get to thinking about it, gee, there's a pawn shop. I can take anything in there, they don't know whether it's mine or not. And I, and so I thereafter conceive the idea of stealing something and bringing it to the pawn shop.

MR. LARKIN: I don't think --

QUESTION: Are you saying that that, that I have been entrapped now because I did not have the predisposition when I first --

MR. LARKIN: No, no. The evidence can be acquired at a later point, it's just that it has to refer back to that earlier point. You don't have to have --

QUESTION: His coming to the pawn shop shows that he had a pre --

MR. LARKIN: Shows that he's predisposed --

QUESTION: He had a predisposition.

MR. LARKIN: -- to sell the material. You can use the evidence during the course of conduct, as I mentioned to Justice Kennedy.

Thank you.

QUESTION: Thank you, Mr. Larkin.

Mr. Moyer, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF GEORGE H. MOYER, JR. ON BEHALF OF THE PETITIONER

MR. MOYER: Thank you, Your Honor. Mr. Justice Rehnquist, excuse me. Mr. Chief Justice Rehnquist, excuse me.

To return to the question you asked me, Mr. Chief Justice, I would call the Court's attention also to page 13 of our reply brief in which we quote from Mr. Justice Roberts' concurring opinion in Sorrells v. United States where he says that it has been generally held where the defendant has proved an entrapment it is permissible to show in rebuttal that the officer guilty of incitement of the crime had reasonable cause to believe the defendant was a person disposed to commit the offense. This procedure is approved by the majority opinion of this Court.

QUESTION: Well, most of Mr. Justice Roberts' opinion was not approved by the majority in Sorrells. And again in Sherman the Court was asked to adopt his concurring opinion in Sorrells and it refused to do that.

MR. MOYER: That's correct, Your Honor, and I don't cite the concurring opinion for that proposition. I cite it for the proposition that Mr. Justice Roberts there mentions that the majority opinion in Sorrells recognizes that the practice had been, at that time, at the time Sorrells was decided, and I think your question went to whether or not I had any authority from this Court, that the majority opinion approved the practice of showing that the officer guilty of incitement of the crime had reasonable cause to believe the defendant was a person committed, or predisposed to commit the offense. And that is the point that I wish to make.

QUESTION: Mr. Moyer, I've been thinking, if we adopted that proposition that you are urging on us, that it's unlawful for the Government to approach a person unless the Government knows in advance of approaching him that he has the predisposition, then I guess the Government couldn't put an ad in a magazine, you know, that suggested that it has child pornography for sale. Right? Because that ad would get to all sorts of people, including people that don't have the predisposition, and any conviction derived from that would be invalid. Is that right?

MR. MOYER: Justice Scalia, I think you have to distinguish between the subparagraph (a) sting that the Attorney General describes in his guidelines and the column (b) sting, or subparagraph (b) sting. I think the ad is of the (b) sting variety and the pawn shop is of the (b) sting variety. In other words, you're putting up an opportunity for illegal activity which has been structured so that there is a reason for believing that those drawn to the opportunity are predisposed to commit it.

QUESTION: I don't see a whole lot of difference between, you know, a throwaway in the mail and an ad in the newspaper. I mean, they're both standard ways of advertising the availability of something.

MR. MOYER: In this particular instance, Your Honor, it's clear that Mr. Jacobson was the target of a Government undercover operation. He had not committed any crime before they targeted him, and that would clearly fall under subparagraph (a) where the Attorney General has said that there is a reasonable indication based on information developed through informants or other means that the subject is engaging, has engaged, or is likely to engage in illegal activities of a similar nature.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Moyer.

The case is submitted.

(Whereupon, at 1:55 p.m., the case in the above-entitled matter was submitted.)