The Government Made Me Do It . . .

I’m often asked why people caught in online stings – like the men in the “To Catch a Predator” shows – can’t raise entrapment as a defense.

Everyone seems to have heard about the defense . . . and those caught in these stings are, in a literal sense, “entrapped.”

The government sets up a fake operation and they fall for it.

In the online predator cases, the government fabricates the whole thing: the existence of a child, the email chats with that child and the premise that the adult male correspondent is going to be meeting that child for the purposes of having a sexual liaison.

Notwithstanding all that, those caught in stings like the “To Catch a Predator” operation will not be able to use entrapment as a defense because U.S. law, anyway, is very parsimonious in allowing people to raise this defense. To illustrate how and what that is, I’m going to use my favorite online entrapment case: United States v. Poehlman, 217 F.3d 692 (9th Circuit Court of Appeals 2000).

According to the court, Mark Poehlman graduated from high school and joined the “Air Force, where he remained for nearly 17 years. Eventually 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 discharge.” U.S. v. Poehlman, supra. Poehlman was a foot fetishist, as well as a cross-dresser. U.S. v. Poehlman, supra.

Losing his wife, his children and his career “left Poehlman lonely and depressed. He began trawling Internet “alternative lifestyle” discussion groups in an effort to find a suitable companion.” U.S. v. Poehlman, supra. When he disclosed his interest in cross-dressing and foot-fetishism, he was met “with strong rebukes.” U.S. v. Poehlman, supra.

He finally “got a positive reaction from a woman named Sharon. Poehlman started his correspondence with Sharon when he responded to an ad in which she indicated 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.’” U.S. v. Poehlman, supra.

“Sharon,” who was actually an FBI agent, responded positively to Poehlman’s email, and told him she was looking for someone who could “help” with “the special education” of her children. Poehlman responded by saying he “had strong family values” and would treat her children as his own. “Sharon” wrote back saying she was looking for a “`special man teacher’” for her children, and for him to write back if he understood and was interested. U.S. v. Poehlman, supra. “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’ . . . and he reiterated his interest in Sharon.” U.S. v. Poehlman, supra.

That, of course, is not what “Sharon” wanted to hear, because Poelhman had gotten involved in an online sting effort. Over the next “six months and scores of e-mails,” the agent posing as “Sharon” worked on Poehlman, making it clear that she expected him to introduce her three fictive daughters – “Karen, aged 7, Bonnie, aged 10, and Abby, aged 12” – to varied types of sexual activity. U.S. v. Poehlman, supra. He ultimately agreed, apparently because introducing the children to sex was held out as a quid pro quo for his having a relationship with “Sharon.” U.S. v. Poehlman, supra.

Poehlman traveled from Florida to California, where he was to begin their instruction, but was arrested by FBI agents and local law enforcement officers. He was convicted of crossing state lines to have sex with a minor in violation of 18 U.S. Code section 2423(b) and sentenced to 121 months.

On appeal, he raised entrapment as his defense. U.S. v. Poehlman, supra. In its opinion, the Ninth Circuit Court of Appeals explained what he had to establish to win on this issue:

When entrapment is . . . raised, the trier of fact [i.e., the jury] must answer two related questions: First, did government agents induce the defendant to commit the crime? And, second, was the defendant predisposed? . . . . [T[he government induces a crime when it creates a special incentive 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 commit the offense, so as to increase the likelihood that he will engage in the particular criminal conduct. Even if the government induces the crime, however, defendant can still be convicted if the trier of fact determines that he was predisposed to commit the offense. Predisposition . . . is the defendant's willingness to commit the offense prior to being contacted by government agents, coupled with the wherewithal to do so.

U.S. v. Poehlman, supra.

This, then, is why stings, including the “To Catch a Predator” stings, work. In setting up a sting, the government’s whole purpose is to induce somone who ultimately becomes a defendant to commit (or attempt to commit, in some stings) the crime for which he is charged. That is not a problem as long as the government can prove that he was predisposed to commit the crime. We see this in the “To Catch a Predator” and other, similar online stings: The government merely creates the opportunity for someone to embark on the commission of a crime, such as traveling to have sex with what the person believes is a minor with whom he has corresponded online. As long as the government’s role is purely passive – as long as it is limited, basically, to creating the opportunity for someone to act on their own, evil impulses – the government will not be deemed to have entrapped the person into the commission of a crime.

The Poehlman case is one of the relatively few instances in which entrapment worked. The Ninth Circuit found, first, that the government had inducted him to commit the crime of which he was convicted: “The government . . . played on Poehlman's obvious need for an adult relationship, for acceptance of his sexual proclivities and for a family, to draw him ever deeper into a sexual fantasy world involving these imaginary girls.” U.S. v. Poehlman, supra.

That, though, is not what makes this case unusual; it is not uncommon for courts to find that the government induced someone to commit a crime since, as I noted above, this is the whole purpose of sting operations, online or not. What makes this an unusual entrapment case is that the court also found that Poehlman had not been predisposed to the commission of the crime: “Having carefully combed the record for any evidence that Poehlman was predisposed to commit the offense of which he was convicted, we find none. To the extent the jury might have found that Poehlman was predisposed to commit the offense, that finding cannot be sustained.” U.S. v. Poehlman, supra. (He apparently argued entrapment at trial, but failed to convince the jury; the Ninth Circuit reversed the conviction because it found that the jury should have accepted his entrapment defense.)

The Ninth Circuit ended its opinion by essentially scolding the government:

`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.’ [Jacobson v. United States, 503 U.S. 540 (U.S. Supreme Court 1992). . . . Poehlman is such a citizen. Prior to his unfortunate encounter with Sharon, he was on a quest for an adult relationship with a woman who would . . . 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.

U.S. v. Poehlman, supra.