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SUPREME COURT OF THE UNITED STATES
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No. 90-1124
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KEITH JACOBSON, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of
appeals for the eighth circuit
[April 6, 1992]

  Justice O'Connor, with whom The Chief Justice and
Justice Kennedy join, and with whom Justice Scalia
joins except as to Part II, dissenting.
  Keith Jacobson was offered only two opportunities to buy
child pornography through the mail.  Both times, he
ordered.  Both times, he asked for opportunities to buy
more.  He needed no Government agent to coax, threaten,
or persuade him; no one played on his sympathies, friend-
ship, or suggested that his committing the crime would
further a greater good.  In fact, no Government agent even
contacted him face-to-face.  The Government contends that
from the enthusiasm with which Mr. Jacobson responded to
the chance to commit a crime, a reasonable jury could
permissibly infer beyond a reasonable doubt that he was
predisposed to commit the crime.  I agree.  Cf. United
States v. Hunt, 749 F.2d 1078, 1085 (CA4 1984) (ready
response to solicitation shows predisposition), cert. denied,
472 U.S. 1018 (1985); United States v. Kaminski, 703 F.2d
1004, 1008 (CA7 1983) (-`the most important factor . . . is
whether the defendant evidenced reluctance to engage in
criminal activity which was overcome by repeated Govern-
ment inducement'-) (quoting United States v. Reynoso-
Ulloa, 548 F.2d 1329, 1336 (CA9 1977), cert. denied, 436
U.S. 926 (1978)); United States v. Sherman, 200 F.2d 880,
882 (CA2 1952) (indication of predisposition is a defendant's
willingness to commit the offense -`as evinced by ready
complaisance'-) (citation omitted).
  The first time the Government sent Mr. Jacobson a
catalog of illegal materials, he ordered a set of photographs
advertised as picturing -young boys in sex action fun.-  He
enclosed the following note with his order:  -I received your
brochure and decided to place an order.  If I like your
product, I will order more later.-  Record, Government
Exhibit 24.  For reasons undisclosed in the record, Mr.
Jacobson's order was never delivered.
  The second time the Government sent a catalog of illegal
materials, Mr. Jacobson ordered a magazine called -Boys
Who Love Boys,- described as: -11 year old and 14 year old
boys get it on in every way possible.  Oral, anal sex and
heavy masturbation.  If you love boys, you will be delighted
with this.-  Id., Government Exhibit 2.  Along with his
order, Mr. Jacobson sent the following note:  -Will order
other items later.  I want to be discreet in order to protect
you and me.-  Id., Government Exhibit 3.
  Government agents admittedly did not offer Mr. Jacobson
the chance to buy child pornography right away.  Instead,
they first sent questionnaires in order to make sure that he
was generally interested in the subject matter.  Indeed, a
-cold call- in such a business would not only risk rebuff and
suspicion, but might also shock and offend the uninitiated,
or expose minors to suggestive materials.  Cf. FCC v.
Pacifica Foundation, 438 U.S. 726, 748 (1978) (right to be
free from offensive material in one's home); 39 U.S.C.
3010 (regulating the mailing of sexually explicit advertis-
ing materials).  Mr. Jacobson's responses to the question-
naires gave the investigators reason to think he would be
interested in photographs depicting preteen sex.
  The Court, however, concludes that a reasonable jury
could not have found Mr. Jacobson to be predisposed beyond
a reasonable doubt on the basis of his responses to the
Government's catalogs, even though it admits that, by that
time, he was predisposed to commit the crime.  The
Government, the Court holds, failed to provide evidence
that Mr. Jacobson's obvious predisposition at the time of
the crime -was independent and not the product of the
attention that the Government had directed at petitioner.-
Ante, at 9.  In so holding, I believe the Court fails to
acknowledge the reasonableness of the jury's inference from
the evidence, redefines -predisposition,- and introduces a
new requirement that Government sting operations have a
reasonable suspicion of illegal activity before contacting a
suspect.
                            I
  This Court has held previously that a defendant's
predisposition is to be assessed as of the time the Govern-
ment agent first suggested the crime, not when the Govern-
ment agent first became involved.  Sherman v. United
States, 356 U.S. 369, 372-376 (1958).  See also, United
States v. Williams, 705 F.2d 603, 618, n. 9 (CA2), cert.
denied, 464 U.S. 1007 (1983).  Until the Government
actually makes a suggestion of criminal conduct, it could
not be said to have -implant[ed] in the mind of an innocent
person the disposition to commit the alleged offense and
induce its commission . . . .-  Sorrells v. United States, 287
U.S. 435, 442 (1932).  Even in Sherman v. United States,
supra, in which the Court held that the defendant had been
entrapped as a matter of law, the Government agent had
repeatedly and unsuccessfully coaxed the defendant to buy
drugs, ultimately succeeding only by playing on the
defendant's sympathy.  The Court found lack of predisposi-
tion based on the Government's numerous unsuccessful
attempts to induce the crime, not on the basis of prelimi-
nary contacts with the defendant.
  Today, the Court holds that Government conduct may be
considered to create a predisposition to commit a crime,
even before any Government action to induce the commis-
sion of the crime.  In my view, this holding changes
entrapment doctrine.  Generally, the inquiry is whether a
suspect is predisposed before the Government induces the
commission of the crime, not before the Government makes
initial contact with him.  There is no dispute here that the
Government's questionnaires and letters were not sufficient
to establish inducement; they did not even suggest that Mr.
Jacobson should engage in any illegal activity.  If all the
Government had done was to send these materials, Mr.
Jacobson's entrapment defense would fail.  Yet the Court
holds that the Government must prove not only that a
suspect was predisposed to commit the crime before the
opportunity to commit it arose, but also before the Govern-
ment came on the scene.  Ante, at 8.
  The rule that preliminary Government contact can create
a predisposition has the potential to be misread by lower
courts as well as criminal investigators as requiring that
the Government must have sufficient evidence of a defend-
ant's predisposition before it ever seeks to contact him.
Surely the Court cannot intend to impose such a require-
ment, for it would mean that the Government must have a
reasonable suspicion of criminal activity before it begins an
investigation, a condition that we have never before
imposed.  The Court denies that its new rule will affect run-
of-the-mill sting operations, ante, at 8, and one hopes that
it means what it says.  Nonetheless, after this case, every
defendant will claim that something the Government agent
did before soliciting the crime -created- a predisposition
that was not there before.  For example, a bribe taker will
claim that the description of the amount of money available
was so enticing that it implanted a disposition to accept the
bribe later offered.  A drug buyer will claim that the
description of the drug's purity and effects was so tempting
that it created the urge to try it for the first time.  In short,
the Court's opinion could be read to prohibit the Govern-
ment from advertising the seductions of criminal activity as
part of its sting operation, for fear of creating a predisposi-
tion in its suspects.  That limitation would be especially
likely to hamper sting operations such as this one, which
mimic the advertising done by genuine purveyors of
pornography.  No doubt the Court would protest that its
opinion does not stand for so broad a proposition, but the
apparent lack of a principled basis for distinguishing these
scenarios exposes a flaw in the more limited rule the Court
today adopts.
  The Court's rule is all the more troubling because it does
not distinguish between Government conduct that merely
highlights the temptation of the crime itself, and Govern-
ment conduct that threatens, coerces, or leads a suspect to
commit a crime in order to fulfill some other obligation.  For
example, in Sorrells, the Government agent repeatedly
asked for illegal liquor, coaxing the defendant to accede on
the ground that -one former war buddy would get liquor for
another.-  Sorrells v. United States, supra, at 440.  In
Sherman, the Government agent played on the defendant's
sympathies, pretending to be going through drug withdraw-
al and begging the defendant to relieve his distress by
helping him buy drugs.  Sherman, supra, at 371.
  The Government conduct in this case is not comparable.
While the Court states that the Government -exerted
substantial pressure on petitioner to obtain and read such
material as part of a fight against censorship and the
infringement of individual rights,- ante, at 10, one looks at
the record in vain for evidence of such -substantial pres-
sure.-  The most one finds is letters advocating legislative
action to liberalize obscenity laws, letters which could easily
be ignored or thrown away.  Much later, the Government
sent separate mailings of catalogs of illegal materials.
Nowhere did the Government suggest that the proceeds of
the sale of the illegal materials would be used to support
legislative reforms.  While one of the HINT letters suggest-
ed that lobbying efforts would be funded by sales from a
catalog, Record, Defendant's Exhibit 113, the catalogs
actually sent, nearly a year later, were from different
fictitious entities (Produit Outaouais and Far Eastern
Trading Company), and gave no suggestion that money
would be used for any political purposes.  Id., Government
Exhibit 22, Government Exhibit 2.  Nor did the Govern-
ment claim to be organizing a civil disobedience movement,
which would protest the pornography laws by breaking
them.  Contrary to the gloss given the evidence by the
Court, the Government's suggestions of illegality may also
have made buyers beware, and increased the mystique of
the materials offered: -[f]or those of you who have enjoyed
youthful material . . . we have devised a method of getting
these to you without prying eyes of U.S. Customs seizing
your mail.-  Id., Government Exhibit 1.  Mr. Jacobson's
curiosity to see what -`all the trouble and the hysteria'-
was about, ante, at 6, is certainly susceptible of more than
one interpretation.  And it is the jury that is charged with
the obligation of interpreting it.  In sum, the Court fails to
construe the evidence in the light most favorable to the
Government, and fails to draw all reasonable inferences in
the Government's favor.  It was surely reasonable for the
jury to infer that Mr. Jacobson was predisposed beyond a
reasonable doubt, even if other inferences from the evidence
were also possible.

                           II

  The second puzzling thing about the Court's opinion is its
redefinition of predisposition.  The Court acknowledges that
-[p]etitioner's responses to the many communications prior
to the ultimate criminal act were . . . indicative of certain
personal inclinations, including a predisposition to view
photographs of preteen sex . . . .-  Ante, at 10.  If true, this
should have settled the matter; Mr. Jacobson was predis-
posed to engage in the illegal conduct.  Yet, the Court
concludes, -petitioner's responses hardly support an
inference that he would commit the crime of receiving child
pornography through the mails.-  Ibid.
  The Court seems to add something new to the burden of
proving predisposition.  Not only must the Government
show that a defendant was predisposed to engage in the
illegal conduct, here, receiving photographs of minors
engaged in sex, but also that the defendant was predisposed
to break the law knowingly in order to do so.  The statute
violated here, however, does not require proof of specific
intent to break the law; it requires only knowing receipt of
visual depictions produced by using minors engaged in
sexually explicit conduct.  See 18 U.S.C. 2252(a)(2); United
States v. Moncini, 882 F.2d 401, 404-406 (CA9 1989).
Under the Court's analysis, however, the Government must
prove more to show predisposition than it need prove in
order to convict.
  The Court ignores the judgment of Congress that specific
intent is not an element of the crime of receiving sexually
explicit photographs of minors.  The elements of predisposi-
tion should track the elements of the crime.  The predispo-
sition requirement is meant to eliminate the entrapment
defense for those defendants who would have committed the
crime anyway, even absent Government inducement.
Because a defendant might very well be convicted of the
crime here absent Government inducement even though he
did not know his conduct was illegal, a specific intent
requirement does little to distinguish between those who
would commit the crime without the inducement and those
who would not.  In sum, although the fact that Mr.
Jacobson's purchases of Bare Boys I and Bare Boys II were
legal at the time may have some relevance to the question
of predisposition, it is not, as the Court suggests, disposi-
tive.
  The crux of the Court's concern in this case is that the
Government went too far and -abused- the -processes of
detection and enforcement- by luring an innocent person to
violate the law.  Ante, at 12, quoting Sorrells, 287 U.S., at
448.  Consequently, the Court holds that the Government
failed to prove beyond a reasonable doubt that Mr. Jacobson
was predisposed to commit the crime.  It was, however, the
jury's task, as the conscience of the community, to decide
whether or not Mr. Jacobson was a willing participant in
the criminal activity here or an innocent dupe.  The jury is
the traditional -defense against arbitrary law enforcement.-
Duncan v. Louisiana, 391 U.S. 145, 156 (1968).  Indeed, in
Sorrells, in which the Court was also concerned about
overzealous law enforcement, the Court did not decide itself
that the Government conduct constituted entrapment, but
left the issue to the jury.  Sorrells, supra, at 452.  There is
no dispute that the jury in this case was fully and accurate-
ly instructed on the law of entrapment, and nonetheless
found Mr. Jacobson guilty.  Because I believe there was
sufficient evidence to uphold the jury's verdict, I respect-
fully dissent.