Opinion by KOZINSKI; Dissent by Judge THOMPSON.
KOZINSKI, Circuit Judge.
Mark Poehlman, a cross-dresser and foot-fetishist, sought the company of like-minded adults on the Internet. What he found, instead, were federal agents looking to catch child molesters. We consider whether the government's actions amount to entrapment.
After graduating from high school, Mark Poehlman joined the Air Force, where he remained for nearly 17 years. Eventually, he got married and had two children. When Poehlman admitted to his wife that he couldn't control his compulsion to cross-dress, she divorced him. So did the Air Force, which forced him into early retirement, albeit with an honorable discharge.
These events left Poehlman lonely and depressed. He began trawling Internet "alternative lifestyle" discussion groups in an effort to find a suitable companion. Unfortunately, the women who frequented these groups were less accepting than he had hoped. After they learned of Poehlman's proclivities, several retorted with strong rebukes. One even recommended that Poehlman kill himself. Evidently, life in the HOV lane of the information superhighway is not as fast as one might have suspected.
Eventually, Poehlman got a positive reaction from a woman named Sharon. Poehlman started his correspondence with Sharon when he responded to an ad in which she indicated that she was looking for someone who understood her family's "unique needs" and preferred servicemen. Poehlman answered the ad and indicated that he "was looking for a long-term relationship leading to marriage," "didn't mind children," and "had unique needs too." Reporter's Transcript of Proceedings, United States v. Poehlman, No. CR 97-1008-SWK, Thurs., May 21, 1998 at 26 (Testimony of Mark Poehlman).
Sharon responded positively to Poehlman's e-mail. She said she had three children and was "looking for someone who understands us and does not let society's views stand in the way." She confessed that there were "some things I'm just not equipped to teach [the children]" and indicated that she wanted "someone to help with their special education." The full text of her first responsive e-mail
In his next e-mail, also set out in the margin,
Poehlman replied by expressing uncertainty as to what Sharon meant by special man teacher. He noted that he would teach the children "proper morals and give support to them where it is needed," id. (Aug. 2, 1995), and he reiterated his interest in Sharon.
Sharon again rebuffed Poehlman's interest in her: "One thing I should make
Poehlman finally got the hint and expressed his willingness to play sex instructor to Sharon's children.
Poehlman and Sharon eventually made plans for him to travel to California from his Florida home. After arriving in California, Poehlman proceeded to a hotel room where he met Sharon in person. She offered him some pornographic magazines featuring children, which he accepted and examined. He commented that he had always looked at little girls. Sharon also showed Poehlman photos of her children: Karen, aged 7, Bonnie, aged 10, and Abby, aged 12. She then directed Poehlman to the adjoining room, where he was to meet the children, presumably to give them their first lesson under their mother's protective supervision. Upon entering the room however, Poehlman was greeted by Naval Criminal Investigation Special Agents, FBI agents and Los Angeles County Sheriff's Deputies.
Poehlman was arrested and charged with attempted lewd acts with a minor in violation of California law. He was tried, convicted and sentenced to a year in state prison. Two years after his release, Poehlman was again arrested and charged with federal crimes arising from the same incident. A jury convicted him of crossing state lines for the purpose of engaging in sex acts with a minor in violation of 18 U.S.C. § 2423(b). He was sentenced to 121 months. Poehlman challenges the conviction on the grounds that it violates double jeopardy and that he was entrapped. Because we find there was entrapment, we need not address double jeopardy.
"In their zeal to enforce the law ... Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). On the other hand, "the fact that officers or employees of the Government merely afford opportunity or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises." Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The defense of entrapment seeks to reconcile these two, somewhat contradictory, principles.
When entrapment is properly raised, the trier of fact must answer two related questions: First, did government agents induce the defendant to commit the crime? And, second, was the defendant predisposed? We discuss inducement at greater length below, see page 698 infra,
To raise entrapment, defendant need only point to evidence from which a rational jury could find that he was induced to commit the crime but was not otherwise predisposed to do so. See United States v. Staufer, 38 F.3d 1103, 1108 (9th Cir. 1994). Defendant need not present the evidence himself; he can point to such evidence in the government's case-in-chief, or extract it from cross-examination of the government's witnesses. The burden then shifts to the government to prove beyond a reasonable doubt that defendant was not entrapped. See Jacobson, 503 U.S. at 549, 112 S.Ct. 1535.
The district court properly determined that the government was required to prove that Poehlman was not entrapped and gave an appropriate instruction. The jury nonetheless convicted Poehlman, which means that either it did not find that the government induced him, or did find that Poehlman was predisposed to commit the crime.
"Inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship." United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994). Poehlman argues that he was induced by government agents who used friendship, sympathy and psychological pressure to "beguile him into committing crimes which he otherwise would not have attempted." Sherman v. United States, 356 U.S. 369, 376, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).
According to Poehlman, before he started corresponding with Sharon, he was harmlessly cruising the Internet looking for an adult relationship; the idea of sex with children had not entered his mind. When he answered Sharon's ad, he clearly expressed an interest in "a long-term relationship leading to marriage." Testimony
It was Sharon who first suggested that Poehlman develop a relationship with her daughters: "I've had to be both mother and father to my sweethearts, but there are some things I'm just not equipped to teach them. I'm looking for someone to help with their special education." Id. (July 27, 1995). Poehlman's response to this ambiguous invitation was perfectly appropriate: "[A]s far as your children are concerned I will treat them as my own (as I would treat my boys if I had them with me) I have huge family values and like kids and they seem to like me alright too." Id. (July 31, 1995). Even when Sharon, in her next e-mail, became more insistent about having Poehlman be a special man teacher to her daughters, he betrayed no interest in a sexual relationship with them: "I am interested in being this special teasher, but in all honesty I really don't know exactly what you expect me to teach them other than proper morals and give support to them where it is needed." Id. (Aug. 2, 1995).
In the same e-mail, Poehlman expressed a continued interest in an adult relationship with Sharon: "I have to be honest and tell you I would hope you would support and enjoy me sexually as well as in company and hopefully love and the sexual relations that go with it." Id. It was only after Sharon made it clear that agreeing to serve as sexual mentor to her daughters was a condition to any further communications between her and Poehlman that he agreed to play the role Sharon had in mind for him.
The government argues that it did not induce Poehlman because Sharon did not, in so many words, suggest he have sex with her daughters. But this is far too narrow a view of the matter. The clear implication of Sharon's messages is that this is precisely what she had in mind. Contributing to this impression is repeated use of the phrases "special teacher" and "man teacher," and her categorical rejection of Poehlman's suggestion that he would treat her daughters as his own children and teach them proper morals with a curt, "I don't think you understand." Id.
In case the references to a special man teacher were insufficient to convey the idea that she was looking for a sexual mentor for her daughters, Sharon also salted her correspondence with details that clearly carried sexual innuendo. In her second e-mail to Poehlman, she explained that she had "discussed finding a special man teacher with my sweethearts and you should see the look of joy and excitement on their faces. They are very excited about the prospect of finding such a teacher." Id. (Aug. 1, 1995). To round out the point, Sharon further explained that "I want my sweethearts to have the same special memories I have . . . . I've told them about my special teacher and the memories I have. I still get goosebumps thinking about it." Id. From Sharon's account, one does not get the impression that her own special teacher had given her lessons in basket weaving or croquet. Finally, Sharon's third e-mail to Poehlman clearly adds to the suggestion of a sexual encounter between him and her daughters when she states: "I do like to watch, though. I hope you don't think I'm too weird." Id. In light of Sharon's earlier statements, it's hard to escape the voyeuristic implications of this statement. After all, there would be nothing weird about having Sharon watch Poehlman engaged in normal father-daughter activities.
Sharon did not merely invite Poehlman to have a sexual relationship with her minor daughters, she made it a condition of
Sharon eventually drew Poehlman into a protracted e-mail exchange which became increasingly intimate and sexually explicit. Approximately three weeks into the correspondence, Poehlman started signing off as Nancy, the name he adopts when dressing in women's clothes. Sharon promptly started using that name, offering an important symbol of acceptance and friendship. In the same e-mail, Sharon complained that Poehlman had neglected to discuss the education of her two younger girls. "I thought it curious that you did not mention Bonnie or Karen. Are they too young to start their educations? I don't want them to feel left out, but at the same time If you aren't comfortable with them please say so." Id. (Aug. 30, 1995).
Sharon also pushed Poehlman to be more explicit about his plans for the oldest daughter: "Abby is very curious (but excited) about what you expect her to do and I haven't been able to answer all her questions. Hope to hear from you soon." Id. Poehlman responded to Sharon's goading: "Bonnie and Karen being younger need to learn how to please, before they can be taught how to be pleased. they will start be exploring each others body together as well as mine and yours, they will learn how to please both men and women and they will be pleasein Abby as well." Id. (Aug. 31, 1995).
Over six months and scores of e-mails, Sharon persistently urged Poehlman to articulate his fantasies concerning the girls.
Id. (Sept. 18, 1995). Poehlman nevertheless continued to seek a familial relationship with Sharon
As Justice Frankfurter noted in his concurrence in Sherman,
Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring). Whether the police did more than provide an opportunity—whether they actually induced the crime, as that term is used in our entrapment jurisprudence—depends on whether they employed some form of suasion that materially affected what Justice Frankfurter called the "self-struggle [to] resist ordinary temptations." Id. at 384, 78 S.Ct. 819 (Frankfurter, J., concurring).
Where government agents merely make themselves available to participate in a criminal transaction, such as standing ready to buy or sell illegal drugs, they do not induce commission of the crime. "An improper `inducement' . . . goes beyond providing an ordinary `opportunity to commit a crime.' An `inducement' consists of an `opportunity' plus something else—typically, excessive pressure by the government upon the defendant or the government's taking advantage of an alternative, non-criminal type of motive." United States v. Gendron, 18 F.3d 955, 961 (1st Cir.1994) (quoting Jacobson, 503 U.S. at 550, 112 S.Ct. 1535).
In Jacobson, the government conceded inducement based on the fact that the defendant there committed the offense after numerous contacts from the government spanning over two years, during the course of which government agents "wav[ed] the banner of individual rights and disparag[ed] the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials." Jacobson, 503 U.S. at 552, 112 S.Ct. 1535. In doing so, "the Government not only excited petitioner's interest in sexually explicit materials banned by law but also exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and infringement of individual rights." Id. Jacobson is consistent with prior cases such as Sherman, where the government played upon defendant's weakness as a drug user, and Sorrells, where the government agent called upon defendant's loyalty to a fellow war veteran to induce him to commit the offense.
Cases like Jacobson, Sherman and Sorrells demonstrate that even very subtle governmental pressure, if skillfully applied, can amount to inducement. In Jacobson, for example, the government merely advanced the view that the law in question was illegitimate and that, by ordering the prohibited materials, defendant would be joining in "a fight against censorship and the infringement of individual rights." Id. at 552, 112 S.Ct. 1535. In Sorrells, the inducement consisted of repeated
Measured against these precedents, there is no doubt that the government induced Poehlman to commit the crime here. Had Sharon merely responded enthusiastically to a hint from Poehlman that he wanted to serve as her daughters' sexual mentor, there certainly would have been no inducement. But Sharon did much more. Throughout the correspondence with Poehlman, Sharon made it clear that she had made a firm decision about her children's sexual education, and that she believed that having Poehlman serve as their sexual mentor would be in their best interest. She made repeated references to her own sexual mentor, explaining that he could have mentored her daughters, had he not died in a car crash in 1985. See Appellant's Excerpts of Record at Tab 5 (Oct. 30, 1995). While parental consent is not a defense to statutory rape, it nevertheless can have an effect on the "self-struggle [to] resist ordinary temptations." Sherman, 356 U.S. at 384, 78 S.Ct. 819 (Frankfurter, J., concurring). This is particularly so where the parent does not merely consent but casts the activity as an act of parental responsibility and the selection of a sexual mentor as an expression of friendship and confidence. Not only did this diminish the risk of detection, it also allayed fears defendant might have had that the activities would be harmful, distasteful or inappropriate, particularly since Sharon claimed to have herself benefitted from such experiences. See United States v. Gamache, 156 F.3d 1, 11 (1st Cir.1998) ("[T]he government agent provided justifications for the illicit activity (intergenerational sex) by describing `herself' as glad that Gamache was `liberal' like her, expressing that she, as the mother of the children, strongly approved of the illegal activity, and explaining that she had engaged in this conduct as a child and found it beneficial to her.").
It is clear, moreover, that Poehlman continued to long for an adult relationship with Sharon, as well as a father-like relationship with the girls. He offered marriage; talked about quitting his job and moving to California; discussed traveling with Sharon and the girls; even offered his military health insurance benefits as an inducement. While refusing to give Poehlman hope of a sexual relationship with her, Sharon encouraged these fantasies; she went so far as to check out Poehlman's job prospects in California.
As the First Circuit noted in a case with very similar facts, "[t]he record is clear that it was the Government's insistence and artful manipulation of appellant that finally drew him into the web skillfully spun by the detective." Gamache, 156 F.3d at 10.
The jury could, nevertheless, have found Poehlman guilty if it found that he was predisposed to commit the offense. Quite obviously, by the time a defendant actually commits the crime, he will have become disposed to do so. However, the relevant time frame for assessing a defendant's disposition comes before he has any contact with government agents, which is doubtless why it's called predisposition. See Jacobson, 503 U.S. at 549, 112 S.Ct. 1535 ("`[T]he prosecution must prove beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.'") (quoting United States v. Whoie, 925 F.2d 1481, 1483-84 (D.C.Cir. 1991)). In our case, the question is whether there is evidence to support a finding that Poehlman was disposed to have sex with minors prior to opening his correspondence with Sharon.
The government argues that Poehlman was predisposed because he jumped at the chance to cross state lines to sexually mentor Sharon's children at the first opportunity available to him. But if willingness alone were the test, Jacobson would have come out differently. The defendant there had been contacted by government agents posing as organizations espousing the view that child pornography should be made legal, and asked a variety of questions about his interest in young boys. Jacobson expressed such an interest and, in response to "surveys," expressed the view that such materials should be made legal. The correspondence lasted two years, at the end of which the government (posing as one of these organizations) offered to sell him some magazines containing pictures of nude boys. Jacobson immediately placed an order and was arrested after the materials were delivered. As the Seventh Circuit noted in Hollingsworth, Jacobson "never resisted" the government's offer. Hollingsworth, 27 F.3d at 1199.
Despite Jacobson's willingness to commit the offense at the first opportunity offered to him, the Supreme Court held that the government had failed to show predisposition because it had failed to show that he would have been disposed to buy the materials before the government started its correspondence with him. The fact that he was willing to order illegal materials after he'd been harangued by the government for over two years was not deemed sufficient to show predisposition. Jacobson's decision to order, the Court reasoned, could have been a consequence of the government's inducement.
By analogy, the fact that Poehlman willingly crossed state lines to have sex with minors after his prolonged and steamy correspondence with Sharon cannot, alone, support a finding of predisposition. It is possible, after all, that it was the government's inducement that brought Poehlman to the point where he became willing to break the law. As in Jacobson, we must consider what evidence there is as to Poehlman's state of mind prior to his contact with Sharon.
On this score, the record is sparse indeed; it is easier to say what the record does not contain than what it does. The government produced no e-mails or chat room postings where Poehlman expressed an interest in sex with children, or even the view that sex with children should be legalized. Nor did the government produce any notes, tapes, magazines, photographs, letters or similar items which disclosed an interest in sex with children, despite a thorough search of Poehlman's home. There was no testimony from the playmates of Poehlman's children, his ex-wife or anyone else indicating that Poehlman had behaved inappropriately toward
Poehlman does not appear to have responded to her ad because it mentions children or their special needs. During the crucial first few exchanges, see page 695-97 supra, when Sharon focused Poehlman's attention on those special needs, he expressed confusion as to what she had in mind. Instead of exploiting the ambiguity in Sharon's messages to suggest the possibility of sex with her daughters, Poehlman pushed the conversation in the opposite direction, offering to act as a father figure to the girls and teach them "proper morals." Appellant's Excerpts of Record at Tab 5 (Aug. 2, 1995). While Poehlman's reluctance might have been borne of caution—the way a drug dealer might demur when he is unsure whether a prospective buyer is a government agent—the fact remains that Poehlman's earliest messages (which would be most indicative of his pre-existing state of mind) provide no support for the government's case on predisposition. To the contrary, Poehlman's reluctance forced Sharon to become more aggressive in her suggestions, augmenting the defendant's case for inducement. See page 698-99 supra.
Poehlman's enthusiastic, protracted and extreme descriptions of the sexual acts he would perform with Sharon's daughters are, according to the government, its strongest evidence of Poehlman's predisposition. Indeed, once he got the idea of what Sharon had in mind, Poehlman expressed few concerns about the morality, legality or appropriateness of serving as the girls' sexual mentor. But Poehlman was not convicted of writing smutty e-mails; he was convicted of crossing state lines, some six months later, to have sex with minors. The problem with using Poehlman's e-mails as evidence of predisposition is that they were all in response to specific, pointed suggestions by Sharon. The e-mails thus tell us what Poehlman's disposition was once the government had implanted in his mind the idea of sex with Sharon's children, but not whether Poehlman would have engaged in such conduct had he not been pushed in that direction by the government. In short, Poehlman's erotic e-mails cannot provide proof of predisposition because nothing he says in them helps differentiate his state of mind prior to the government's intervention from that afterwards.
It is entirely plausible to infer that, as in Jacobson, it was the government's graduated response—including e-mail correspondence, handwritten letters from the girls and Sharon, the use of intimate names, a photograph of Poehlman sent to Sharon, Poehlman handcrafting gifts for the girls and Sharon's willingness to help Poehlman look for a job in Southern California—that brought Poehlman to the point where he was willing to cross state lines for the purpose of having sex with the three young girls. Since the government has the burden of proof as to predisposition, materials like these e-mails, which do not demonstrate any preexisting propensity to engage in the criminal conduct at issue, simply cannot carry that burden.
This is not to say that statements made after the government's inducement can never be evidence of predisposition. If, after the government begins inducing a defendant, he makes it clear that he would have committed the offense even without the inducement, that would be evidence of predisposition. But only those statements that indicate a state of
The only indication in the record of any preexisting interest in children is Poehlman's statement in the hotel room that he has "always looked at little girls." Testimony of Mark Poehlman, page 695 supra. But this is hardly an indication that he was prone to engage in sexual relations with minors. See Jacobson, 503 U.S. at 545, 112 S.Ct. 1535 (while defendant expressed interest in "good looking young guys (in their late teens and early 20's) doing their thing together," the Court noted that he "made no reference to child pornography"); see also Hollingsworth, 27 F.3d at 1202 ("Whatever it takes to become an international money launderer, they did not have it."). Having carefully combed the record for any evidence that Poehlman was predisposed to commit the offense of which he was convicted, we find none. To the extent the jury might have found that Poehlman was predisposed to commit the offense, that finding cannot be sustained.
"When the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene." Jacobson, 503 U.S. at 553-54, 112 S.Ct. 1535. So far as this record discloses, Poehlman is such a citizen. Prior to his unfortunate encounter with Sharon, he was on a quest for an adult relationship with a woman who would understand and accept his proclivities, which did not include sex with children. There is surely enough real crime in our society that it is unnecessary for our law enforcement officials to spend months luring an obviously lonely and confused individual to cross the line between fantasy and criminality. The judgment of conviction is
The mandate shall issue at once. Fed. R.App. P. 2.
THOMPSON, Circuit Judge, dissenting:
I respectfully dissent. Our task as an appellate court is not to reweigh the evidence but to uphold the jury's verdict so long as substantial evidence supports it. The fact that we would have decided the case differently is irrelevant.
Viewing the evidence in the light most favorable to the government, we may reverse the jury's verdict only if no reasonable jury could have concluded that Mark Poehlman was not legally entrapped. See United States v. Citro, 842 F.2d 1149, 1151 (9th Cir.1988). Because there was sufficient evidence for a reasonable jury to find that the government did not induce Poehlman to commit the crime, the jury's verdict should be upheld.
Entrapment as a matter of law was not established in this case. Entrapment as a matter of law requires undisputed evidence establishing that the government induced the defendant to commit the crime and that the defendant was not predisposed to commit the crime. See United States v. Lorenzo, 43 F.3d 1303, 1305 (9th Cir.1995).
A reasonable jury could also have found that Poehlman was predisposed to commit the crime. We generally rely upon five factors in determining predisposition: (1) the defendant's character or reputation; (2) whether the government first suggested the criminal activity; (3) whether the defendant profited from the activity; (4) whether the defendant demonstrated reluctance; and (5) the nature of the government's inducement. See Citro, 842 F.2d at 1152. The defendant's reluctance generally receives the greatest weight. See United States v. Thickstun, 110 F.3d 1394, 1397 (9th Cir.1997).
Poehlman's character and the absence of a profit motive are two factors that weigh heavily in Poehlman's favor. Poehlman does not have a history of a sexual interest in children, and his e-mail communications with Sharon never revealed an interest in profiting from any sexual relationship. The other predisposition factors, however, tip in favor of the government. During the undercover operation, the government constructed purposely vague e-mail messages. While Poehlman claims that the government initiated the sexual conversation when Sharon wrote about the lessons for her children from a "special man teacher" and her desire to watch the lessons, Poehlman conceded at trial that Sharon "never came out and said that [he] have sex with the kids." Poehlman first introduced sexual remarks in his reply to the government's message stating Sharon's interest in finding a "special man teacher" for her children.
Although Poehlman's e-mail messages during the first two weeks of his communication with Sharon appeared free of sexual allusions directed toward her children, his communications for the next roughly 5-½ months detailed sexual acts that he would perform with Sharon's three children, even asking Sharon to put the two older girls on birth control. Moreover, just prior to Poehlman's arrest, a female undercover agent, posing as Sharon, presented Poehlman with a child pornography magazine and pointed to a particular picture depicting a child in a sexual act. When the officer asked Poehlman whether he thought the children "will be ready for this," Poehlman responded, "God, I hope so." Poehlman also remarked that he has "always looked at little girls." Although Poehlman at trial stated that he meant women over the age of eighteen, a reasonable
At trial, the government established that Poehlman first mentioned having sex with the children, and each proposed sexual act originated from him. Even though this case is not as clear cut as a case in which a defendant, for example, exemplifies predisposition by owning a library of explicit materials before the commencement of a sting operation, the jury heard enough evidence for it to reasonably conclude that Poehlman in fact had a predisposition to commit the crime.
As the majority acknowledges, the district court properly instructed the jury,
Appellant's Excerpts of Record at Tab 5 (July 27, 1995).
Appellant's Excerpt of Record at Tab 5 (July 31, 1995).
Appellant's Excerpts of Record at Tab 5 (Aug. 2, 1995).
Appellant's Excerpts of Record at Tab 5 (Aug. 3, 1995).