Jacobson v. United States

The Facts

Defendant ordered two magazines of teenage and pre-teen boys.  The contents of the magazine started the defendant who claimed he had expected the magazines to be of men 18 and older.  The young men in the magazine were not photographed having sex and his purchase was legal in his state.  Three months later Congress outlawed child nude pornography.  The defendant’s name continued to on the subscription list of the magazine.  Two government agencies attempted to create five fake organizations and created a fake pen pal in order to induce the defendant to break Congress’s new law.  Eventually defendant responded to one of the fake ads saying, “Please feel free to send me more information, I am interested in teenage sexuality.  Please keep my name confidential.”  To another fake mailing he responded “As far as my likes are concerned, I like good looking young guys (in their late teens and early 20’s) doing their thing together.”  Defendant later responded to another fake magazine that claimed to be able to send him material without customs detecting its contents.  Defendant later signed onto the mailing list.  Defendant later said he was curious about the content of the mailing and wasn’t sure what the letter was referring to.  In a search of his home the only pornographic material of young men was the material sent by the government itself.

Procedural History

Trial court and appellate court granted an entrapment defense, yet defendant was still found at both levels.


“In their zeal to enforce the law … Government agents may not originate a criminal design, implant 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.”

The Issue

Whether the government proved that defendant was predisposed to the crime given the stated facts.

The Holding

Where entrapment is at issue “the government must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”  As such, an agent may offer the sale of drugs or prostitution and if the buyer agrees, the offense is prosecutable.

Here defendant was the target of 26 months of mailings and communications by fake government organizations.  “Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985.”  The only evidence which shows defendant’s predisposition is the order of the original magazine.  This magazine “may indicate a predisposition to view sexually-oriented photographs that are responsive to his sexual tastes; but evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition.”  Also, defendant cannot be prosecuted for the receipt of this magazine because it was received prior to the eventually passage of the relevant law in 1988.

“Government may not play on the weakness of an innocent party and beguile him into committing crimes which he otherwise would not have attempted.”  Congress did not intent for this crime to be punishable where the act was instigated by government officials.  “When the Government’s quest for convictions leads to the apprehension of an otherwise law abiding citizen, who, if left to his own devices, like would have never run afoul of the law, the courts should intervene.”


Defendant was only offered twice the opportunity to buy child porn and accepted both times and asked for opportunity to buy more.  “He needed no government agent to coax, threaten, or persuade him.”  This court ruling offers a new requirement “that government sting operations have a reasonable suspicion of illegal activity before contacting a suspect.”  The court is holding that the government must prove not only that a suspect was predisposed to commit the crime before an opportunity to do so arose, but also before the government even became a part of the crime. In effect, this requirement would mean that the government must have a reasonable suspicion before engaging in an investigation at all.

The court also adds a component to the definition of “predisposition.”  The court requires that the defendant be showed to have a predisposition to engage in the illegal conduct and also shows that he knowingly break the law as well.  The law at issue here does not require specific intent.  All that’s required is that there be a “knowing receipt” of minor pornography.  Just because the defendant’s purchase of the now illegal material was not illegal at the time of purchase does not negate the admissibility of the evidence.  The court is requiring that the defendant know he was committing an illegal act in their ruling, but by dismissing evidence of predisposition because his conduct was legal at the time unnecessarily creates a rule that he know his acts were illegal.


Note:  Expert testimony can be introduced to show an “unusual susceptibility to inducement.”

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