Undercover investigations and the entrapment defense

FBI Law Enforcement Bulletin,The,  April, 1993  by Thomas V. Kukura

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Law enforcement officers often employ trickery and deception to catch those involved in criminal activity. The U.S. Supreme Court has recognized that when investigating certain criminal behavior, law enforcement may lawfully use an array of undercover techniques. However, in 1992, the Supreme Court in Jacobson v. United States(1) overturned a Federal child pornography conviction based on an entrapment defense.

Entrapment and other related defenses are often asserted by criminal defendants to challenge the legality of various undercover investigative techniques. This article begins with a discussion of the entrapment defense in the context of the Jacobson decision. It then examines selected lower Federal court decisions that delineate several important factors law enforcement officers should consider when conducting undercover operations.

While Jacobson involves the so-called subjective view of entrapment used in the Federal courts, some State jurisdictions permit an objective entrapment defense that stresses the wrongfulness of Government action without regard to the defendant's criminal predisposition.(2) This article focuses on recent cases concerning the subjective entrapment defense, which concentrates on the predisposition of the defendant. However, the general principles discussed are relevant for any law enforcement officer considering the use of undercover techniques.

Background of the Jacobson Decision

In February 1984, a 56-year-old Nebraska farmer (hereinafter the defendant), with no record or reputation for violating any law, lawfully ordered and received from an adult bookstore two magazines that contained photographs of nude teenage boys. Subsequent to this, Congress passed the Child Protection Act of 1984, which made it illegal to receive such material through the mail. Later that year, the U.S. Postal Service obtained the defendant's name from a mailing list seized at the adult bookstore, and in January 1985, began an undercover operation targeting him.

Over the next 2 1/2 years, Government investigators, through five fictitious organizations and a bogus pen pal, repeatedly contacted the defendant by mail, exploring his attitudes toward child pornography. The communications also contained disparaging remarks about the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit material, and finally, offered the defendant the opportunity to order illegal child pornography.

Twenty-six months after the mailings to the defendant commenced, Government investigators sent him a brochure advertising photographs of young boys engaging in sex. At this time, the defendant placed an order that was never filled.

Meanwhile, the investigators attempted to further pique the defendant's interest through a fictitious letter decrying censorship and suggesting a method of getting material to him without the "prying eyes of U.S. Customs." A catalogue was then sent to him, and he ordered a magazine containing child pornography.

After a controlled delivery of a photocopy of the magazine, the defendant was arrested. A search of his home revealed only the material he received from the Government and the two sexually oriented magazines he lawfully acquired in 1984.

The defendant was charged with receiving child pornography through the mail in violation of 18 U.S.C. |sec~ 2252 (a)(2)(A). He defended himself by claiming that the Government's conduct was outrageous, that the Government needed reasonable suspicion before it could legally begin an investigation of him, and that he had been entrapped by the Government's investigative techniques. The lower Federal courts rejected these defenses, but in a 5-4 decision, the Supreme Court reversed his conviction, based solely on the entrapment claim.(3)

Entrapment Based on a Lack of Predisposition

In Jacobson, the Supreme Court held that law enforcement officers "...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."(4) The Court's rationale followed a traditional entrapment defense analysis that focuses on two basic questions. First, did the Government induce the defendant to commit the crime? Second, assuming the Government improperly induced the defendant to commit the crime, was the defendant nevertheless predisposed to commit the criminal act prior to first being approached by Government agents?

Because the Government did not dispute that it induced the defendant to order the pornography, the sole issue before the Court in Jacobson was whether the Government had proved beyond a reasonable doubt that the defendant was predisposed to order the illegal pornography before the Government intervened. Based on the unusual facts of this case, the Court held that the Government failed to prove Jacobson's predisposition to commit this criminal act, independent of the attention the Government directed at him for 2 1/2 years.