NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JACOBSON v. UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 90-1124.   Argued November 6, 1991-Decided April 6, 1992

At a time when federal law permitted such conduct, petitioner Jacobson
 ordered and received from a bookstore two Bare Boys magazines
 containing photographs of nude preteen and teenage boys.  Subse-
 quently, the Child Protection Act of 1984 made illegal the receipt
 through the mails of sexually explicit depictions of children.  After
 finding Jacobson's name on the bookstore mailing list, two Govern-
 ment agencies sent mail to him through five fictitious organizations
 and a bogus pen pal, to explore his willingness to break the law.
 Many of those organizations represented that they were founded to
 protect and promote sexual freedom and freedom of choice and that
 they promoted lobbying efforts through catalog sales.  Some mailings
 raised the spectre of censorship.  Jacobson responded to some of the
 correspondence.  After 2- years on the Government mailing list,
 Jacobson was solicited to order child pornography.  He answered a
 letter that described concern about child pornography as hysterical
 nonsense and decried international censorship, and then received a
 catalog and ordered a magazine depicting young boys engaged in
 sexual activities.  He was arrested after a controlled delivery of a
 photocopy of the magazine, but a search of his house revealed no
 materials other than those sent by the Government and the Bare
 Boys magazines.  At his jury trial, he pleaded entrapment and
 testified that he had been curious to know the type of sexual actions
 to which the last letter referred and that he had been shocked by the
 Bare Boys magazines because he had not expected to receive photo-
 graphs of minors.  He was convicted, and the Court of Appeals
 affirmed.
Held:The prosecution failed, as a matter of law, to adduce evidence to
 support the jury verdict that Jacobson was predisposed, independent
 of the Government's acts and beyond a reasonable doubt, to violate
 the law by receiving child pornography through the mails.  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.  Sorrells v. United States,
 287 U.S. 435, 442.  Jacobson was not simply offered the opportunity
 to order pornography, after which he promptly availed himself of that
 opportunity.  He was the target of 26 months of repeated Govern-
 ment mailings and communications, and the Government has failed
 to carry its burden of proving predisposition independent of its
 attention.  The preinvestigation evidence-the Bare Boys maga-
 zines-merely indicates a generic inclination to act within a broad
 range, not all of which is criminal.  Furthermore, Jacobson was
 acting within the law when he received the magazines, and he
 testified that he did not know that they would depict minors.  As for
 the evidence gathered during the investigation, Jacobson's responses
 to the many communications prior to the criminal act were at most
 indicative of certain personal inclinations and would not support the
 inference that Jacobson was predisposed to violate the Child Protec-
 tion Act.  On the other hand, the strong arguable inference is that,
 by waving the banner of individual rights and disparaging the
 legitimacy and constitutionality of efforts to restrict the availability
 of sexually explicit materials, the Government not only excited
 Jacobson's interest in material banned by law but also exerted
 substantial pressure on him to obtain and read such material as part
 of the fight against censorship and the infringement of individual
 rights.  Thus, rational jurors could not find beyond a reasonable
 doubt that Jacobson possessed the requisite predisposition before the
 Government's investigation and that it existed independent of the
 Government's many and varied approaches to him.  Pp.7-12.
916 F.2d 467, reversed.

 White, J., delivered the opinion of the Court, in which Blackmun,
Stevens, Souter, and Thomas, JJ., joined.  O'Connor, J., filed a
dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined,
and in which Scalia, J., joined except as to Part II.
-------------------------------




NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
--------
No. 90-1124
--------
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 White delivered the opinion of the Court.
  On September 24, 1987, petitioner Keith Jacobson was
indicted for violating a provision ofhild Protection Act
of 1984, Pub. L. 98-292, 98 Stat. 204 (Act), which
criminalizes the knowing receipt through the mails of a
``visual depiction [that] involves the use of a minor engag-
ing in sexually explicit conduct . . . .''  18 U. S. C.
2252(a)(2)(A).  Petitioner defended on the ground that the
Government entrapped him into committing the crime
through a series of communications from undercover agents
that spanned the 26 months preceding
his arrest.  Petitioner was found guilty after a jury trial.  The
Court of Appeals affirmed his conviction, holding that the
Government had carried its burden of proving beyond
reasonable doubt that petitioner was predisposed to break
the law and hence was not entrapped.
Because the Government overstepped the line between
setting a trap for the -unwary innocent- and the -unwary
criminal,- Sherman v. United States, 356 U. S. 369, 372
(1958), and as a matter of law failed to establish that
petitioner was independently predisposed to commit the
crime for which he was arrested, we reverse the Court of
Appeals' judgment affirming his conviction.
                 I
In February 1984, petitioner, a 56-year-old veteran-
turned-farmer who supported his elderly father in Nebras-
ka, ordered two magazines and a brochure from a California
adult bookstore.  The magazines, entitled Bare Boys I and
Bare Boys II, contained photographs of nude preteen and
teenage boys.  The contents of the magazines startled
petitioner, who testified that he had expected to receive
photographs of ``young men 18 years or older.''  Tr. 425.  On
cross-examination, he explained his response to the maga-
zines:
-[PROSECUTOR]:  [Y]ou were shocked and surprised
that there were pictures of very young boys without
clothes on, is that correct?
-[JACOBSON]:  Yes, I was.
-[PROSECUTOR]:  Were you offended?
  .      .       .      .      .
-[JACOBSON]:  I was not offended because I thought
these were a nudist type publication.  Many of the
pictures were out in a rural or outdoor setting.  There
was-I didn't draw any sexual connotation or connec-
tion with that.-  Id., at 463.
The young men depicted in the magazines were not engaged
in sexual activity, and petitioner's receipt of the magazines
was legal under both federal and Nebraska law.  Within
three months, the law with respect to child pornography
changed; Congress passed the Act illegalizing the receipt
through the mails of sexually explicit depictions of children.
In the very month that the new provision became law,
postal inspectors found petitioner's name on the mailing list
of the California bookstore that had mailed him Bare Boys
I and II.  There followed over the next 2- years, repeated
efforts by two Government agencies, through five fictitious
organizations and a bogus pen pal, to explore petitioner's
willingness to break the new law by ordering sexually
explicit photographs of children through the mail.
The Government began its efforts in January 1985 when
a postal inspector sent petitioner a letter supposedly from
the American Hedonist Society, which in fact was a
fictitious organization.  The letter included a membership
application and stated the Society's doctrine:  that members
had the ``right to read what we desire, the right to discuss
similar interests with those who share our philosophy, and
finally that we have the right to seek pleasure without
restrictions being placed on us by outdated puritan morali-
ty.''  Record, Government Exhibit 7.  Petitioner enrolled in
the organization and returned a sexual attitude question-
naire that asked him to rank on a scale of one to four his
enjoyment of various sexual materials, with one being
``really enjoy,'' two being ``enjoy,'' three being ``somewhat
enjoy,'' and four being ``do not enjoy.''  Petitioner ranked the
entry ``[p]re-teen sex'' as a two, but indicated that he was
opposed to pedophilia.  Ibid.
For a time, the Government left petitioner alone.  But
then a new ``prohibited mail specialist'' in the Postal Service
found petitioner's name in a file, Tr. 328-331, and in May
1986, petitioner received a solicitation from a second
fictitious consumer research company, -Midlands Data Re-
search,- seeking a response from those who -believe in the
joys of sex and the complete awareness of those lusty and
youthful lads and lasses of the neophite [sic] age.-  Record,
Government Exhibit 8.  The letter never explained whether
``neophite'' referred to minors or young adults.  Petitioner
responded: ``Please feel free to send me more information,
I am interested in teenage sexuality.  Please keep my name
confidential.''  Ibid.
Petitioner then heard from yet another Government
creation, ``Heartland Institute for a New Tomorrow''
(HINT), which proclaimed that it was ``an organization
founded to protect and promote sexual freedom and freedom
of choice.  We believe that arbitrarily imposed legislative
sanctions restricting your sexual freedom should be rescind-
ed through the legislative process.''  Id., Defendant's Exhibit
102.  The letter also enclosed a second survey.  Petitioner
indicated that his interest in -[p]reteen sex-homosexual-
material was above average, but not high.  In response to
another question, petitioner wrote:  -Not only sexual
expression but freedom of the press is under attack.  We
must be ever vigilant to counter attack right wing funda-
mentalists who are determined to curtail our freedoms.-
Id., Government Exhibit 9.
-HINT- replied, portraying itself as a lobbying organiza-
tion seeking to repeal ``all statutes which regulate sexual
activities, except those laws which deal with violent
behavior, such as rape.  HINT is also lobbying to eliminate
any legal definition of `the age of consent'.''  Id., at
Defendant's Exhibit 113.  These lobbying efforts were to be
funded by sales from a catalog to be published in the future
``offering the sale of various items which we believe you will
find to be both interesting and stimulating.''  Ibid.  HINT
also provided computer matching of group members with
similar survey responses; and, although petitioner was
supplied with a list of potential -pen pals,- he did not
initiate any correspondence.
Nevertheless, the Government's ``prohibited mail special-
ist'' began writing to petitioner, using the pseudonym -Carl
Long.- The letters employed a tactic known as -mirroring,-
which the inspector described as -reflect[ing] whatever the
interests are of the person we are writing to.-  Tr. 342.
Petitioner responded at first, indicating that his interest
was primarily in -male-male items.-  Record, Government
Exhibit 9A.  Inspector -Long- wrote back:
-My interests too are primarily male-male items.  Are
you satisfied with the type of VCR tapes available?
Personally, I like the amateur stuff better if its [sic]
well produced as it can get more kinky and also seems
more real.  I think the actors enjoy it more.-  Id.,
Government Exhibit 13.
Petitioner 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.-  Id., Government Exhibit 14.
Petitioner's letters to -Long- made no reference to child
pornography.  After writing two letters, petitioner discontin-
ued the correspondence.
By March 1987, 34 months had passed since the Govern-
ment obtained petitioner's name from the mailing list of the
California bookstore, and 26 months had passed since the
Postal Service had commenced its mailings to petitioner.
Although petitioner had responded to surveys and letters,
the Government had no evidence that petitioner had ever
intentionally possessed or been exposed to child pornogra-
phy.  The Postal Service had not checked petitioner's mail
to determine whether he was receiving questionable
mailings from persons-other than the Government-in-
volved in the child pornography industry.  Tr. 348.
At this point, a second Government agency, the Customs
Service, included petitioner in its own child pornography
sting, ``Operation Borderline,'' after receiving his name on
lists submitted by the Postal Service.  Id., at 71-72.  Using
the name of a fictitious Canadian company called ``Produit
Outaouais,'' the Customs Service mailed petitioner a bro-
chure advertising photographs of young boys engaging in
sex.  Record, Government Exhibit 22.  Petitioner placed an
order that was never filled.  Id., Government Exhibit 24.
The Postal Service also continued its efforts in the
Jacobson case, writing to petitioner as the -Far Eastern
Trading Company Ltd.-  The letter began:
-As many of you know, much hysterical nonsense has
appeared in the American media concerning `por-
nography' and what must be done to stop it from
coming across your borders.  This brief letter does not
allow us to give much comments; however, why is your
government spending millions of dollars to exercise
international censorship while tons of drugs, which
makes yours the world's most crime ridden country are
passed through easily.-  Id., Government Exhibit 1.
The letter went on to say:
``[W]e have devised a method of getting these to you
without prying eyes of U.S. Customs seizing your
mail. . . .  After consultations with American solicitors,
we have been advised that once we have posted our
material through your system, it cannot be opened for
any inspection without authorization of a judge.''  Ibid.
The letter invited petitioner to send for more information.
It also asked petitioner to sign an affirmation that he was
``not a law enforcement officer or agent of the U.S. Govern-
ment acting in an undercover capacity for the purpose of
entrapping Far Eastern Trading Company, its agents or
customers.''  Petitioner responded.  Ibid.  A catalogue was
sent, id., Government Exhibit 2, and petitioner ordered
Boys Who Love Boys, id., Government Exhibit 3, a porno-
graphic magazine depicting young boys engaged in various
sexual activities.  Petitioner was arrested after a controlled
delivery of a photocopy of the magazine.
When petitioner was asked at trial why he placed such an
order, he explained that the Government had succeeded in
piquing his curiosity:
-Well, the statement was made of all the trouble and
the hysteria over pornography and I wanted to see
what the material was.  It didn't describe the-I didn't
know for sure what kind of sexual action they were
referring to in the Canadian letter. . . .-  Tr. 427-428.
In petitioner's home, the Government found the Bare
Boys magazines and materials that the Government had
sent to him in the course of its protracted investigation, but
no other materials that would indicate that petitioner
collected or was actively interested in child pornography.
Petitioner was indicted for violating 18 U. S. C.
2552(a)(2)(A).  The trial court instructed the jury on the
petitioner's entrapment defense, petitioner was convicted,
and a divided Court of Appeals for the Eighth Circuit,
sitting en banc, affirmed, concluding that -Jacobson was not
entrapped as a matter of law.-  916 F. 2d 467, 470 (1990).
We granted certiorari.  499 U. S. ____ (1991).

                II
There can be no dispute about the evils of child pornogra-
phy or the difficulties that laws and law enforcement have
encountered in eliminating it.  See generally Osborne v.
Ohio, 495 U. S. 103, 110 (1990); New York v. Ferber, 458
U. S. 747, 759-760 (1982).  Likewise, there can be no
dispute that the Government may use undercover agents to
enforce the law.  ``It is well settled that the fact that officers
or employees of the Government merely afford opportunities
or facilities for the commission of the offense does not
defeat the prosecution.  Artifice and stratagem may be em-
ployed to catch those engaged in criminal enterprises.''
Sorrells v. United States, 287 U. S. 435, 441 (1932);
Sherman v. United States, 356 U. S., at 372; United States
v. Russell, 411 U. S. 423, 435-436 (1973).
In their zeal to enforce the law, however, 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.  Sorrells, supra, at 442;
Sherman, supra, at 372.  Where 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 prosecu-
tion must prove beyond reasonable doubt that the defen-
dant was disposed to commit the criminal act prior to first
being approached by Government agents.  United States v.
Whoie, 288 U. S. App. D. C. 261, 263-264, 925 F. 2d 1481,
1483-1484 (1991).
Thus, an agent deployed to stop the traffic in illegal drugs
may offer the opportunity to buy or sell drugs, and, if the
offer is accepted, make an arrest on the spot or later.  In
such a typical case, or in a more elaborate ``sting'' operation
involving government-sponsored fencing where the defen-
dant is simply provided with the opportunity to commit a
crime, the entrapment defense is of little use because the
ready commission of the criminal act amply demonstrates
the defendant's predisposition.  See United States v.
Sherman, 200 F. 2d 880, 882 (CA2 1952).  Had the agents
in this case simply offered petitioner the opportunity to
order child pornography through the mails, and petition-
er-who must be presumed to know the law- had promptly
availed himself of this criminal opportunity, it is unlikely
that his entrapment defense would have warranted a jury
instruction.  Mathews v. United States, 485 U. S. 58, 66
(1988).
But that is not what happened here.  By the time
petitioner finally placed his order, he had already been the
target of 26 months of repeated mailings and communica-
tions from 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 petitioner since January 1985.  Sorrells, supra,
at 442; Sherman, 356 U. S., at 372.
The prosecution's evidence of predisposition falls into two
categories:  evidence developed to the Postal Service's
mail campaign, and that developed during the course of the
investigation.  The sole piece of preinvestigation evidence
is petitioner's 1984 order and receipt of the Bare Boys
magazines.  But this is scant if any proof of petitioner's
predisposition to commit an illegal act, the criminal
character of which a defendant is presumed to know.  It
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.
Furthermore, petitioner was acting within the law at the
time he received these magazines.  Receipt through the
mails of sexually explicit depictions of children for noncom-
mercial use did not become illegal under federal law until
May 1984, and Nebraska had no law that forbade
petitioner's possession of such material until 1988.  Neb.
Rev. Stat. 28-813.01 (1989).  Evidence of predisposition to
do what once was lawful is not, by itself, sufficient to show
predisposition to do what is now illegal, for there is a
common understanding that most people obey the law even
when they disapprove of it.  This obedience may reflect a
generalized respect for legality or the fear of prosecution,
but for whatever reason, the law's prohibitions are matters
of consequence.  Hence, the fact that petitioner legally
ordered and received the Bare Boys magazines does little to
further the Government's burden of proving that petitioner
was predisposed to commit a criminal act.  This is particu-
larly true given petitioner's unchallenged testimony was
that he did not know until they arrived that the magazines
would depict minors.
The prosecution's evidence gathered during the investiga-
tion also fails to carry the Government's burden.  Petiti-
oner's responses to the many communications prior to the
ultimate criminal act were at most indicative of certain
personal inclinations, including a predisposition to view
photographs of preteen sex and a willingness to promote a
given agenda by supporting lobbying organizations.  Even
so, petitioner's responses hardly support an inference that
he would commit the crime of receiving child pornography
through the mails.  Furthermore, a person's inclinations
and ``fantasies . . . are his own and beyond the reach of
government . . . .  Paris Adult Theatre I v. Slaton, 413 U. S.
49, 67 (1973); Stanley v. Georgia, 394 U. S. 557, 565-566
(1969).
On the other hand, the strong arguable inference is that,
by waving the banner of individual rights and disparaging
the legitimacy and constitutionality of efforts to restrict the
availability of sexually explicit materials, the Government
not only excited petitioner's interest in sexually explicit
materials banned by law but also exerted substantial
pressure on petitioner to obtain and read such material as
part of a fight against censorship and the infringement of
individual rights.  For instance, HINT described itself as
``an organization founded to protect and promote sexual
freedom and freedom of choice'' and stated that ``the most
appropriate means to accomplish [its] objectives is to
promote honest dialogue among concerned individuals and
to continue its lobbying efforts with State Legislators.''
Record, Defendant's Exhibit 113.  These lobbying efforts
were to be financed through catalogue sales.  Ibid.  Mail-
ings from the equally fictitious American Hedonist Society,
id., Government Exhibit 7, and the correspondence from the
non-existent Carl Long, id., Defendant's Exhibit 5, endorsed
these themes.
Similarly, the two solicitations in the spring of 1987
raised the spectre of censorship while suggesting that
petitioner ought to be allowed to do what he had been
solicited to do.  The mailing from the Customs Service
referred to ``the worldwide ban and intense enforcement on
this type of material,'' observed that ``what was legal and
commonplace is now an `underground' and secretive
service,'' and emphasized that ``[t]his environment forces us
to take extreme measures'' to insure delivery.  Id., Govern-
ment Exhibit 22.  The Postal Service solicitation described
the concern about child pornography as ``hysterical non-
sense,'' decried ``international censorship,'' and assured
petitioner, based on consultation with ``American solicitors''
that an order that had been posted could not be opened for
inspection without authorization of a judge.  Id., Govern-
ment Exhibit 1.  It further asked petitioner to affirm that
he was not a government agent attempting to entrap the
mail order company or its customers.  Ibid.  In these
particulars, both government solicitations suggested that
receiving this material was something that petitioner ought
to be allowed to do.
Petitioner's ready response to these solicitations cannot
be enough to establish beyond reasonable doubt that he was
predisposed, prior to the Government acts intended to
create predisposition, to commit the crime of receiving child
pornography through the mails.  See Sherman, 356 U. S.,
at 374.  The evidence that petitioner was ready and willing
to commit the offense came only after the Government had
devoted 2- years to convincing him that he had or should
have the right to engage in the very behavior proscribed by
law.  Rational jurors could not say beyond a reasonable
doubt that petitioner possessed the requisite predisposition
prior to the Government's investigation and that it existed
independent of the Government's many and varied ap-
proaches to petitioner.  As was explained in Sherman,
where entrapment was found as a matter of law, ``the
Government [may not] pla[y] on the weaknesses of an
innocent party and beguil[e] him into committing crimes
which he otherwise would not have attempted.''  Id., at 376.
Law enforcement officials go too far when they -implant
in the mind of an innocent person the disposition to commit
the alleged offense and induce its commission in order that
they may prosecute.-  Sorrels, 287 U. S., at 442 (emphasis
added).  Like the Sorrels court, we are -unable to conclude
that it was the intention of the Congress in enacting this
statute that its processes of detection and enforcement
should be abused by the instigation by government officials
of an act on the part of persons otherwise innocent in order
to lure them to its commission and to punish them.-  Id., at
448.  When the Government's quest for convictions leads to
the apprehension of an otherwise law-abiding citizen who,
if left to his own devices, likely would have never run afoul
of the law, the courts should intervene.
Because we conclude that this is such a case and that the
prosecution failed, as a matter of law, to adduce evidence to
support the jury verdict that petitioner was predisposed,
independent of the Government's acts and beyond a
reasonable doubt, to violate the law by receiving child
pornography through the mails, we reverse the Court of
Appeals' judgment affirming the conviction of Keith
Jacobson.
                       It is so ordered.
-------------------------------



SUPREME COURT OF THE UNITED STATES
--------
No. 90-1124
--------
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 predisposit 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.
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