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When Does the Government Cross the Line Between Trapping an Unwary Innocent Person Versus Trapping an Unwary Criminal?

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         In the case of Jacobson v. United States, the U.S. Supreme Court reversed the conviction of Mr. Jacobson after finding that agents of the federal government entrapped him when they overstepped the line between trapping an unwary innocent person and trapping an unwary criminal.

         In 1984, Mr. Jacobson ordered two magazines and a brochure from an out-of-state adult bookstore that contained photographs of nude preteen and teenage boys.  At that time, it was legal to order such materials through the U.S. Postal Service.  However, that same year Congress passed the Child Protection Act of 1984 which outlawed such activity.

          For the next two-and-a-half years, two government agencies, through five fictitious organizations and a bogus pen pal, explored Jacobson’s willingness to break the new law by ordering sexually-explicit photos of children through the mail.  After receiving a letter from one such fictitious organization in 1987, Jacobson ordered a magazine that showed young boys engaged in various sexual activities.  He was then arrested and indicted for violating the Child Protection Act.

          At his trial, Jacobson argued that he had been entrapped, but the jury rejected that argument as did the United States Court of Appeals for the Eighth Circuit.  Jacobson then appealed his case to the United States Supreme Court which concluded that he had indeed been entrapped into buying pornographic materials.

         The High Court stated that "[w]here the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. . . .  Had the agents in this case simply offered [Jacobson] the opportunity to order child pornography through the mails, and . . . had [Jacobson] promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have [ultimately been successful]. . . .   But that is not what happened here.  By the time [Jacobson] finally placed his order, he had already been the target of 26 months of repeated mailings and communications from the Government agents and fictitious 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 [Jacobson] since January 1985."  (Italics added.)