Jacobson v. United States, 503 U.S. 540 (1992), is a case decided by the United States Supreme Court regarding the criminal procedure topic of entrapment. A narrowly divided court overturned the conviction of a Nebraska man for receiving child sexual abuse material through the mail, ruling that postal inspectors had implanted a desire to do so through repeated written entreaties.
It was the first time the court had considered an entrapment case other than regarding controlled-substance enforcement. By relying exclusively on whether the defendant had a predisposition to commit the crime, the court seemed to have finally resolved a lingering issue in its previous decisions on the subject.Lord, Kenneth; Entrapment and Due Process: Moving Toward A Dual System of Defenses , 25 Fl St. U. Law Rev. 473, 1998.
The decision was considered as a rare triumph for defendants before a conservative court that frequently sided with prosecutors.Greenhouse, Linda; April 7, 1992; Justices, in Entrapment Case, Cast a Rare Vote Against Prosecutors; The New York Times; retrieved August 15, 2006 Guidelines for federal law enforcement agents were changed in its wake,Chin, Id., 30, citing Attorney General’s Guidelines on FBI Undercover Operations (Dec. 31, 1980), reprinted in Select Committee to Study Undercover Activities of the Department of Justice, S. Rep. 97-682, at 551 (1982) and The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations (May 30, 2002). and it was described as having brought entrapment "back from the dead".Paul Marcus, "Presenting, Back from the [Almost] Dead, the Entrapment Defense", 47 Fla L Rev 205 (1995). Cited in Gabriel J. Chin, The Story of Jacobson v United States: Catching Criminals or Creating Crime?, Arizona Legal Studies Discussion Paper N. 06-12, February 2006, retrieved August 10, 2006, 31. This draft is described as a chapter in the forthcoming Criminal Law Stories. 31.
Background of the case
U.S. anti-child pornography legislation and early cases Until the late 1970s, there were no federal laws specifically addressing the production, distribution or possession of child sexual abuse material (CSAM), and it was readily available to those who sought it. While some was imported from European countries where it was produced, there was also a domestic industry.
Media exposés and popular outrage caused Congress to pass by unanimous vote the Protection of Children Against Sexual Exploitation Act of 1977 (SEOC), which criminalized the production and sale of child pornography. This act was signed into law by President Jimmy Carter on February 6, 1978. also amended the Mann Act The legislation was supported by a unanimous decision of the Supreme Court in New York v. Ferber, , that images of children need not meet legal definitions of obscenity to be prohibited by the government, since the state's interest in protecting children from harm trumped First Amendment rights in this instance.
Soon thereafter, an update to the SEOC Act, the Child Protection Act of 1984, made it illegal to purchase pornographic materials depicting minors through the mail, or possess them, on the grounds that it encouraged child sexual abuse. While popular with voters, civil liberties advocates warned that the expanded scope of these laws could result in prosecutions of entirely innocent people who had little or nothing to do with the child-porn industry, such as parents taking photos or videos of their children in the nude. Nevertheless, investigators forged ahead and had, by the mid-1980s, ended almost all domestic child-porn production. Lawrence Stanley, The Child Pornography Myth, 7 Cardozo Arts & Ent L J 295, 324 (1989); cited at Chin, 18n54.
Investigation and arrest of Keith Jacobson
In January 1985 inspectors for the United States Postal Service (USPS) in the Great Plains states began "Project Looking Glass", a sting operation under the newly enacted Child Protection Act of 1984,Pub.L. 98-292, 98 Stat. 204 (1984). which made it illegal to send pictures of nude minors through the mail, even for noncommercial purposes (previously, only those who intended to resell them could be prosecuted).Linder, Doug; Evil in the American Justice System; Case 3: Project Looking Glass , retrieved August 10, 2006. Ray Mack, the inspector in charge, meant it to be primarily an intelligence-gathering operation, a way to keep tabs on producers and distributors. It sent mail to those it had known to have ordered such materials while they were legal. Among them were Keith Jacobson, a bachelor 56-year-old U.S. Army retiree turned farmer living with his elderly parents in Newman Grove, Nebraska, who would later describe himself as bisexualMarcus, Ruth; November 6, 1991; Fair Sting or Foul Trap? Child Pornography Investigation Challenged; The Washington Post; retrieved August 13, 2006 although he said he had never had relations with men.Chin, Id., 9. Jacobson had, the previous year, ordered two magazines entitled Bare Boys I and Bare Boys II from Electric Moon, an adult bookstore in San Diego, California, that had been raided and shut down.
USPS investigators decided to send him a letter from a fictitious organization, the "American Hedonist Society", which supposedly sought to lobby for "the right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan morality." Included was a questionnaire attempting to gauge the respondent's interest in various paraphilias, including pedophilia and ephebophilia. Jacobson indicated an "above average" interest in the latter, especially between males, but also stated he was opposed to the former. The USPS decided he was not a promising target and left him alone.
But some time later, Calvin Comfort, a "prohibited mailing specialist" for the region, found Jacobson's name in another file, and the government decided to try again, this time as part of an operation aimed at purchasers. In May 1986, they sent him mail from another fictitious organization, "Midlands Data Research", which was for those who "believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite age". Jacobson confessed to them that he was "interested in teenage sexuality", asked for more information and that his name be kept confidential. This resulted in Jacobson getting mail from the "Heartland Institute for a New Tomorrow" (HINT), "an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process." Jacobson seemed to sympathize, writing in response that sexual freedom and freedom of the press were being attacked by "right-wing fundamentalists".
Along with a thank you note from "Jean Daniels" of HINT also came a supposed list of others in the area with similar interests as possible pen pals. But Jacobson never wrote to any of them. So Comfort, under the pseudonym "Carl Long", wrote back using a technique termed "mirroring", claiming to have interests calculated to be similar to those believed held by Jacobson, and specifically, to be equally interested in depictions of sex acts between young boys. Jacobson said he, too, liked "good looking young guys (in their late teens and early 20s) doing their thing together". Neither Jacobson nor Comfort made any more explicit reference to pornographic materials and Jacobson stopped writing back after two letters. With no evidence that he had ever watched or possessed any CSAM, the USPS again dropped its efforts against him.
Those were renewed in March 1987 when the United States Customs Service sent similar exploratory material, supposedly from Canada, to Jacobson and others on the USPS's list, and he responded, placing an order that was never filled. A catalog from a "Far Eastern Trading Company" was sent instead, along with other written material bemoaning the infringement of sexual freedoms. This time Jacobson ordered a publication named Boys Who Love Boys, which the catalog said featured "11 and 14 year old boys" who "get it on in every way imaginable. Oral, anal and heavy masturbation. If you love boys," it further read, "you will be delighted with this".
On June 16, 1987, Jacobson received a card in his mail telling him to go to the post office and pick up the envelope that supposedly contained Boys Who Love Boys. Comfort observed him doing so and got a search warrant for his home on that basis. He was arrested soon thereafter, 26 months after the postal inspectors had first contacted him.Jacobson v. United States, 503 U.S. 540, 544–547
Lower court proceedings
Criminal trial Jacobson was indicted on one count of knowingly receiving through the mails sexually explicit material depicting a minor18 U.S.C. § 2252(a)(2) in September. At trial in federal court, his attorney, George H. Moyer, noted his exemplary military service record, including a Bronze Star, service in Korea and Vietnam War and lack of a civilian criminal record beyond a drunken-driving conviction in 1958.Chin, Id., 13. He raised the entrapment defense.
Jacobson testified that he had been "shocked and surprised" by the contents of the Bare Boys collections when he received them, as he had not expected the photos to depict very young boys: "I thought these were a nudist type publication. Many of the pictures were out in a rural or outdoor setting. There was – I didn't draw any sexual connotation or connection with that".Jacobson, 503 U.S. 540, 543
The jury convicted him in April 1988. He was sentenced to three years imprisonment, suspended to two years' probation and 250 hours of community service, which he discharged by painting a school bus and working at a library. He had to sell his share of the family farm to his sister to pay his legal bills, and was dismissed from his job driving a school bus in Newman Grove even though there was no evidence he had ever approached children sexually.Chin, Id., 12, He lowered his profile, often driving to more distant communities to run routine errands.Johnson, Dirk; April 19, 1992; Farmer Caught in Pornography Trap Feels Vindicated, but at a Cruel Cost; The New York Times; retrieved August 11, 2006. Nonetheless, his hometown sympathized with him. "Any of us could be caught up in such a sting," the Newman Grove local newspaper editorialized.
Appeals A panel of three appellate judges heard the case for the Eighth Circuit Court of Appeals. On January 12, 1990, Senior Judge Gerald Heaney and Chief Judge Donald Lay overturned the conviction on the grounds that the government had insufficient grounds to believe that Jacobson was likely to purchase the material it was offering to him.United States v. Jacobson, 893 F2d at 999–1000. Judge George G. Fagg said in dissent that his colleagues had "declared war on the government's power to initiate undercover investigations" and that reasonable suspicion need not be present for such operations to occur.Id. at 1003.
He would be successful after federal prosecutors appealed for an en banc rehearing by the entire court, reiterating that point for an eight-judge majority and saying that unless Jacobson could demonstrate that a specifically protected right had been violated by the investigation, the conviction should stand. The majority also rejected the entrapment defense, arguing that the postal investigators had merely provided Jacobson with opportunities to purchase CSAM and not sought to affect his predisposition (an important element in entrapment under U.S. law) to do so in any way.United States v. Jacobson, 916 F2d 467 (8th Cir. 1990) (en banc)