FC: Feds entrapped man into preying on children, appeals ct says 2-1

[Declan McCullagh <declan () well com>]

*******
Excerpt from Judge Kozinski's opinion:
> 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 REVERSED on grounds of
> insufficiency of the evidence and the case is REMANDED
> with instructions that defendant be released forthwith.
********


http://laws.findlaw.com/9th/9850631.html


U.S. 9th Circuit Court of Appeals
USA v POEHLMAN
9850631

Filed June 27, 2000

[...]

OPINION

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.

I

After graduating from high school, Mark Poehlman joined
the Air Force, where he remained for nearly 17 years. Eventu-
ally, 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 dis-
charge.

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 indi-
cated 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 Poehl-
man).1

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-mail2  is set out in the margin.3
In his next e-mail, also set out in the margin, 4 Poehlman
disclosed the specifics of his "unique needs. " He also
explained that he has strong family values and would treat
Sharon's children as his own. Sharon's next e-mail focused on
the children, explaining to Poehlman that she was looking for
a "special man teacher" for them but not for herself. She
closed her e-mail with the valediction, "If you understand and
are interested, please write back. If you don't share my views
I understand. Thanks again for your last letter. " Appellant's
Excerpts of Record at Tab 5 (Aug. 1, 1995).

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.5

Sharon again rebuffed Poehlman's interest in her:"One
thing I should make really clear though, is that there can't be
anything between me and my sweethearts special teacher." Id.
(Aug. 2, 1995). She then asked Poehlman for a description of
what he would teach her children as a first lesson, promising
"not to get mad or upset at anything written. If I disagree with
something I'll just say so. I do like to watch, though. I hope
_________________________________________________________________
5   Hi Sharon,

       so happy to finnally learn your name, 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.

       Can I ask how old your sweethearts are and if you don't mind
       telling me what kind of teachings do you expect me to give them?
       But I will tell you that I am interested in their mom too, you
       would be part of the picture with them right? this is why I tell you
       all about myself and what I like, cause I ahve 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.

       Hope you are well and your sweethearts are well too, I truly hope
       to hear from you and hopefully some more information about
       what you are looking for. . till then Have a very nice day.

       Mark

Appellant's Excerpts of Record at Tab 5 (Aug. 2, 1995).

you don't think I'm too weird." Id.

Poehlman finally got the hint and expressed his willingness
to play sex instructor to Sharon's children.6 In later e-mails,
Poehlman graphically detailed his ideas to Sharon, usually at
her prompting. Among these ideas were oral sex, anal sex and
various acts too tasteless to mention. The correspondence
blossomed to include a phone call from Sharon and hand writ-
ten notes from one of her children. Poehlman made decorative
belts for all the girls and shipped the gifts to them for Christ-
mas.

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 maga-
zines 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 Poehl-
man to the adjoining room, where he was to meet the chil-
dren, presumably to give them their first lesson under their
mother's protective supervision. Upon entering the room
however, Poehlman was greeted by Naval Criminal Investiga-
tion 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 engag-
ing in sex acts with a minor in violation of 18 U.S.C.
S 2423(b). He was sentenced to 121 months. Poehlman chal-
lenges 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.

II

[1] "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
(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  (1932). The defense of entrapment seeks
to reconcile these two, somewhat contradictory, principles.

[2] 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, sec-
ond, was the defendant predisposed? We discuss inducement
at greater length below, see page 6885 infra, but at bottom the
government induces a crime when it creates a special incen-
tive for the defendant to commit the crime. This incentive can
consist of anything that materially alters the balance of risks
and rewards bearing on defendant's decision whether to com-
mit the offense, so as to increase the likelihood that he will
engage in the particular criminal conduct. Even if the govern-
ment induces the crime, however, defendant can still be con-
victed if the trier of fact determines that he was predisposed
to commit the offense. Predisposition, which we also discuss
at length below, see page 6893 infra, is the defendant's will-
ingness to commit the offense prior to being contacted by
government agents, coupled with the wherewithal to do so.
See United States v. Hollingsworth, 27 F.3d 1196, 1200 (7th
Cir. 1994) (en banc). While our cases treat inducement and
predisposition as separate inquiries, see, e.g., United States v.
McClelland, 72 F.3d 717, 722 (9th Cir. 1995), the two are
obviously related: If a defendant is predisposed to commit the
offense, he will require little or no inducement to do so; con-
versely, if the government must work hard to induce a defen-
dant to commit the offense, it is far less likely that he was
predisposed. See Hollingsworth, 27 F.3d at 1200.

[3] To raise entrapment, defendant need only point to evi-
dence from which a rational jury could find that he was
induced to commit the crime but was not otherwise predis-
posed 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 gov-
ernment's witnesses. The burden then shifts to the govern-
ment to prove beyond a reasonable doubt that defendant was
not entrapped. See Jacobson, 503 U.S. at 549.

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 con-
victed 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.7 Poehlman argues that he
was entrapped as a matter of law. To succeed, he must per-
suade us that, viewing the evidence in the light most favorable
to the government, no reasonable jury could have found in
favor of the government as to inducement or lack of predispo-
sition. See United States v. Thickstun , 110 F.3d 1394, 1396
(9th Cir. 1997).

Inducement

[4] "Inducement can be any government conduct creating
a substantial risk that an otherwise law-abiding citizen would
commit an offense, including persuasion, fraudulent represen-
tations, 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 (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 of Mark Poehlman, page 6879 supra, at
26. His only reference to children was that he "didn't mind"
them. Id. Even after Sharon gave him an opening by hinting
about "not let[ting] society's views stand in the way," Poehl-
man continued to focus his sexual attentions on the mother
and not the daughters: "[I]f you don't mind me wearing your
hose and licking your toes then I am open for anything."
Appellant's Excerpts of Record at Tab 5 (July 31, 1995).

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). Poehl-
man'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 hav-
ing 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 inter-
est in an adult relationship with Sharon: "I ahve 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 Poehl-
man'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. (Aug. 2, 1995).

In case the references to a special man teacher were insuffi-
cient to convey the idea that she was looking for a sexual
mentor for her daughters, Sharon also salted her correspon-
dence with details that clearly carried sexual innuendo. In her
second e-mail to Poehlman, she explained that she had "dis-
cussed 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 goose-
bumps 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, Shar-
on'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 her own continued interest in him.8  Sharon, moreover, pres-
sured Poehlman to be explicit about his plans for teaching the
girls: "Tell me more about how their first lesson will go. This
will help me make my decision as to who their teacher will
be." Id. (Sept. 19, 1995). The implication is that unless Poehl-
man came up with lesson plans that were sufficiently creative,
Sharon would discard Poehlman and select a different mentor
for her daughters.

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.9
Meanwhile Poehlman continued his efforts to establish a rela-
tionship with Sharon. For example, Poehlman twice proposed
marriage, but this drew a sharp rebuke from Sharon:

       Nancy, I'm not interested in marriage or any type of
       relationship with my darlings' teacher. My quest as
       their mother is to find them the right teacher so that
       they get the same education I was fortunate enough
       to get at their ages. You need to understand this. This
       is not for me, but for them. I don't mean to sound
       harsh, but you can't imagine the number of people
       just looking for a wife or girlfriend online. I have to
       look past all this and concentrate on finding my dar-
       lings' special man teacher.

Id. (Sept. 18, 1995). Poehlman nevertheless continued to seek
a familial relationship with Sharon10 and her daughters,
expressing himself ready to quit his job and move across the
country to be with them.

As Justice Frankfurter noted in his concurrence in Sher-
man,
       Of course in every case of this kind the intention that
       the particular crime be committed originates with the
       police, and without their inducement the crime
       would not have occurred. But it is perfectly clear
       [that] . . . where the police in effect simply furnished
       the opportunity for the commission of the crime, that
       this is not enough to enable the defendant to escape
       conviction.

[...]



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