U.S. v. Hollingsworth

• Citation: 27 F.3d 1196
• Decision Date: 02 June 1994
• Docket Number: 92-2694 and 92-2695,Nos. 92-2399,92-2483,s. 92-2399
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Arnold L. HOLLINGSWORTH, Jr. and William A. Pickard, III, Defendants-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1196

27 F.3d 1196

63 USLW 2002

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Arnold L. HOLLINGSWORTH, Jr. and William A. Pickard, III,

Defendants-Appellants, Cross-Appellees.

Nos. 92-2399, 92-2483, 92-2694 and 92-2695.

United States Court of Appeals, Seventh Circuit.

Argued June 3, 1993.

Decided Oct. 29, 1993.

Reargued En Banc Feb. 8, 1994.

Decided June 2, 1994.

Mark D. Stuaan, Asst. U.S. Atty. (argued), Indianapolis, IN, for plaintiff-appellee U.S.

James E. Evans, Jr. (argued), Evans & Evans, Springdale, AR, for defendant-appellant Arnold L. Hollingsworth, Jr.

Bradley L. Williams (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for defendant-appellant William A. Pickard, III.

Before POSNER, Chief Judge, and CUMMINGS, BAUER, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.

POSNER, Chief Judge.

The defendants, Pickard (a dentist) and Hollingsworth (a farmer), were convicted by a jury of money laundering and related offenses in violation of federal law, and were sentenced to 24 and 18 months in prison, respectively. A panel of this court held that the defendants had been entrapped as a matter of law, and were entitled to be acquitted. 9 F.3d 593 (7th Cir.1993). Rehearing en banc was granted on the petition of the government, which contended that the decision had created a new element of the defense of entrapment--"readiness"--and by doing so had radically altered the law of entrapment.

What is true is that until the Supreme Court's recent decision in Jacobson v. United States, --- U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the courts of appeals had been drifting toward the view, clearly articulated by the Second Circuit in United States v. Ulloa, 882 F.2d 41, 44 (2d Cir.1989), that the defense of entrapment must fail in any case in which the defendant is "willing," in the sense of being psychologically prepared, to commit the crime for which he is being prosecuted, even if it is plain that he would not have engaged in criminal activity unless inveigled or assisted by the government. This drift in thinking reflected the semantic pull of the term "predisposition," the central element of the defense of entrapment as articulated in the modern cases. The word is suggestive of pure willingness; and it is the suggestion picked up by Ulloa and other decisions. But the suggestion cannot in our view be squared with Jacobson. The defendant in that case was prosecuted for buying child pornography, and convicted. The pornography was furnished him by government agents, who were aware of his interest in preteen sex because he had bought magazines that catered to this interest but were not illegal. The purchase for which he was prosecuted was the culmination of a 26-month campaign by the government to interest Jacobson in buying magazines that, because they contained photographs of children engaged in sexual activity, violated the child pornography laws. It is unclear why the government took so long to spring the trap; for Jacobson at no time exhibited any reluctance to purchase such magazines; he may not even have known that they were illegal. Despite his lack of reluctance, emphasized by Justice O'Connor in her dissenting opinion, the Supreme Court reversed Jacobson's conviction, holding that he had been entrapped as a matter of law.

The vote was close (five to four), and the majority opinion, written by Justice White, does not purport to break new ground, to overrule decisions like Ulloa, or to qualify language in previous decisions by the Supreme Court which might have been read to equate predisposition to intent. E.g., United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973). But it is not unusual for a court to change the law without emphasizing its departures from or reinterpretation of precedent; emphasis on continuity is characteristic of common law lawmaking even when innovative, and the doctrine of entrapment is a common law doctrine. Cases both in this and in other circuits, besides the panel decision in this case, recognize that Jacobson has changed the landscape of the entrapment defense. E.g., United States v. Groll, 992 F.2d 755, 760 (7th Cir.1993); United States v. Olson, 978 F.2d 1472, 1483 (7th Cir.1992); United States v. Mkhsian, 5 F.3d 1306, 1310-11 (9th Cir.1993). In Olson, a panel of this court, speaking through Judge Coffey, referred to "the new standard enunciated in Jacobson," 978 F.2d at 1483, and in Groll another panel said that Jacobson had "breath[ed] new life into the entrapment defense." 992 F.2d at 760. United States v. Beal, 961 F.2d 1512 (10th Cir.1992), upheld a judgment of acquittal, in a case factually much like the present one, on the basis of Jacobson. Cf. United States v. Skarie, 971 F.2d 317, 321 (9th Cir.1992). The facts of Jacobson were unquestionably peculiar, and the government's tactics--which included "waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials," --- The vote in Jacobson, as we have noted, was close. If our dissenting colleagues had been members of the Supreme Court when the case was decided, it would no doubt have been decided differently. The decision is narrowly written, with emphasis on the particular tactics employed by the government, and should be cautiously construed. But we are naturally reluctant to suppose that the decision is limited to the precise facts before the Court, or to ignore the Court's definition of entrapment, which concludes the analysis portion of the opinion and is not found in previous opinions, as "the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." Id. at ----, 112 S.Ct. at 1543. That was Jacobson. However impure his thoughts, he was law abiding. A farmer in Nebraska, his access to child pornography was limited. As far as the government was aware, over the period of more than two years in which it was playing cat and mouse with him he did not receive any other solicitations to buy pornography. Id. at ----, 112 S.Ct. at 1539. So, had he been "left to his own devices," in all likelihood he would "have never run afoul of the law." If the same can be said of Pickard and Hollingsworth, they too are entitled to be acquitted. Their willingness to commit the crimes to which the government invited them cannot be decisive. Predisposition requires more; otherwise not only the outcome of Jacobson but also the definitional passage that we quoted and that conspicuously omits mention of any mental state are difficult to make sense of.

U.S. at ----, 112 S.Ct. at 1542--bizarre and distasteful. Nevertheless, had the Court in Jacobson believed that the legal concept of predisposition is exhausted in the demonstrated willingness of the defendant to commit the crime without threats or promises by the government, then Jacobson was predisposed, in which event the Court's reversal of his conviction would be difficult to explain. The government did not offer Jacobson any inducements to buy pornographic magazines or threaten him with harm if he failed to buy them. It was not as if the government had had to badger Jacobson for 26 months in order to overcome his resistance to committing a crime. He never resisted.

Recently the First Circuit, struggling as are we to understand the scope of Jacobson, suggested that all it stands for is that the government may not, in trying to induce the target of a sting to commit a crime, confront him with circumstances that are different from the ordinary or typical circumstances of a private inducement. United States v. Gendron, 18 F.3d 955, 962 (1st Cir.1994). The court in Gendron thought that the government's attempt to persuade Jacobson that he had a First Amendment right to consume child pornography had departed from typicality. We are not so sure. Just as the gun industry likes to wrap itself in the mantle of the Second Amendment, so the pornography industry likes to wrap itself in the mantle of the First Amendment. But however that may be, the government made no effort in this case to show that a real customer for money laundering would have responded to an advertisement to sell a Grenadan bank, which is what happened here as we are about to see.

We put the following hypothetical case to the government's lawyer at the reargument. Suppose the government went to someone and asked him whether he would like to make money as a counterfeiter, and the reply was, "Sure, but I don't know anything about counterfeiting." Suppose the government then bought him a printer, paper, and ink, showed him how to make the counterfeit money, hired a staff for him, and got everything set up so that all he had to do was press a button to print the money; and then offered him $10,000 for some quantity of counterfeit bills. The government's lawyer acknowledged that the counterfeiter would have a strong case that he had been entrapped, even though he was perfectly willing to commit the crime once the government planted the suggestion and showed him how and the government neither threatened him nor offered him an overwhelming inducement.

We do not suggest that Jacobson adds a new element to the entrapment defense--"readiness" or "ability" or "dangerousness" on top of inducement and, most important, predisposition. (As explained in Pickard is an orthodontist practicing in Fayetteville, Arkansas. Hollingsworth is a farmer and businessman, also in Arkansas. Although Pickard's dental practice was (and as far as we know still is) successful, he continually tried to augment his income by business ventures, all of which failed. The last and most disastrous failure began in 1988 when he and Hollingsworth decided to become international financiers--a vocation for which neither had any training, contacts, aptitude, or experience. Pickard formed a...