916 F.2d 467 (8th Cir. 1990), 88-2097, United States v. Jacobson

Docket Nº:88-2097NE.
Citation:916 F.2d 467
Party Name:UNITED STATES of America, Appellee, v. Keith M. JACOBSON, Appellant.
Case Date:October 15, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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916 F.2d 467 (8th Cir. 1990)

UNITED STATES of America, Appellee,


Keith M. JACOBSON, Appellant.

No. 88-2097NE.

United States Court of Appeals, Eighth Circuit

October 15, 1990

Submitted May 17, 1990.

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George H. Moyer, Jr., Madison, Neb., for appellant.

Jan W. Sharp, Omaha, Neb., for appellee.

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges, En Banc.

FAGG, Circuit Judge.

A jury convicted Keith M. Jacobson of knowingly receiving through the mails sexually explicit material depicting a minor. See 18 U.S.C. Sec. 2252(a)(2) (Supp. V 1987). Jacobson appeals, and we affirm.

When police searched a California pornography bookstore, they discovered Jacobson's name on the bookstore's mailing list. Jacobson had ordered three items from the bookstore, two magazines featuring photos of nude adolescent boys and a brochure listing stores in the United States and Europe selling sexually explicit materials. Posing as a member of a hedonist organization, a postal inspector mailed Jacobson a sexual attitude survey and a membership application. Jacobson paid the membership fee to receive a quarterly newsletter from the organization and returned the survey expressing his preference for preteen sex. Later, a postal inspector mailed Jacobson another survey. Jacobson responded positively, "Please feel free to send me more information. I am interested in teenage sexuality." The postal inspector then mailed Jacobson a list of pen pals with similar sexual interests, and Jacobson began corresponding with pen pal Carl Long, the undercover identity of a postal inspector. Jacobson sent Carl Long a newspaper for homosexuals and two letters. Another postal inspector sent Jacobson a letter inviting him to order a child pornography catalogue. Jacobson requested the catalogue and then ordered Boys Who Love Boys, a magazine advertised in the catalogue. The catalogue described Boys Who Love Boys as "eleven year old and fourteen 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." Jacobson also ordered a set of sexually explicit photographs of young boys from another brochure a customs service agent mailed him. The photographs were never delivered to Jacobson. Following a controlled delivery of the magazine, postal inspectors arrested Jacobson when they searched his home and found Boys Who Love Boys.

All told, the postal inspectors mailed Jacobson two sexual attitude surveys, seven letters measuring his appetite for child pornography, and two sex catalogues. Jacobson responded with interest on eight occasions.

On appeal, Jacobson contends the government cannot begin an undercover investigation of a suspected person unless the government has reasonable suspicion based on articulable facts that the suspected person is predisposed to criminal activity. Although Jacobson did not raise this legal issue in the district court, both the government and Jacobson were given an opportunity to brief and argue the issue before the court en banc. We thus proceed on the premise that this issue is properly before us. In re Modern Textile, 900 F.2d 1184, 1191 (8th Cir.1990).

Apart from any question of whether the government's investigatory conduct deprived Jacobson of due process of law, Jacobson contends we should bar the government from obtaining a conviction in his case because the government did not have reasonable suspicion of wrongdoing on his part before targeting him for an undercover investigation. Jacobson argues this bar should apply even when the character of the government's investigation is not outrageous. We disagree.

In this circuit, we review the government's involvement in undercover investigations under due process principles. United States v. Irving, 827 F.2d 390, 393 (8th Cir.1987) (per curiam). The same is true of other courts of appeals. See United States v. Miller, 891 F.2d 1265, 1267

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(7th Cir.1989); United States v. Driscoll, 852 F.2d 84, 86-87 (3d Cir.1988); United States v. Jenrette, 744 F.2d 817, 823-24 & n. 13 (D.C.Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2321, 85 L.Ed.2d 840 (1985); United States v. Gamble, 737 F.2d 853, 856-60 (10th Cir.1984); United States v. Myers, 635 F.2d 932, 941 (2d Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980).

Due process limitations "come into play only when the [g]overnment activity in question violates some protected right of the defendant." Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (emphasis omitted). Jacobson has no constitutional right to be free of investigation. United States v. Trayer, 898 F.2d 805, 808 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 113, 112 L.Ed.2d 83 (1990). Indeed, Jacobson does not claim the government's decision to investigate him deprived him of any right secured by the constitution. Nevertheless, Jacobson borrows from the rule of particularized suspicion that governs investigatory detentions, Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968), to narrow the government's power to initiate undercover investigations. There is no constitutional basis for this borrowing since the government's decision to investigate Jacobson did not encroach on Jacobson's "right to personal security." Id. at 9, 88 S.Ct. at 1873. Jacobson's demand for particularized suspicion runs against the grain "of the post-Hampton cases decided by the courts of appeals [holding] that due process grants wide leeway to law enforcement agen[ts] in their investigation of crime." United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983); see also Hampton, 425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7 (Powell, J., concurring).

We thus join with the courts of appeals that hold the constitution does not require reasonable suspicion of wrongdoing before the government can begin an undercover investigation. See Jenrette, 744 F.2d at 824 & n. 13; Gamble, 737 F.2d at 860; United States v. Thoma, 726 F.2d 1191, 1198-99 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Jannotti, 673 F.2d 578, 609 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); Myers, 635 F.2d at 941; see also United States v. Steinhorn, 739 F.Supp. 268 (D.Md.1990). But see United States v. Luttrell, 889 F.2d 806, 812-14 (9th Cir.1989) (constitutional norms require reasoned grounds for undercover investigations), reh'g en banc granted, 906 F.2d 1384 (1990). To hold otherwise would give the federal judiciary an unauthorized "veto over law enforcement practices of which it [does] not approve." United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973); see also United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977) (judges are not free to impose their personal notions of fairness on law enforcement officers under the guise of due process). In our view, when the government's investigatory conduct does not offend due process, the mere fact the undercover investigation is started without reasonable suspicion "does not bar the conviction of those who rise to its bait." Jannotti, 673 F.2d at 609.

Jacobson next contends the government's investigatory conduct was outrageous and violated his due process rights. This contention is without merit. We recognize due process bars the government from invoking judicial process to obtain a conviction when the investigatory conduct of law enforcement agents is outrageous. Gunderson v. Schlueter, 904 F.2d 407, 410-11 (8th Cir.1990) (citing Hampton, 425 U.S. at 492-95, 96 S.Ct. at 1651-53 (Powell, J., concurring); Russell, 411 U.S. at 431-32, 93 S.Ct. at 1642-43). Because the government may go a long way in concert with the investigated person without violating due process, United States v. Musslyn, 865 F.2d 945, 947 (8th Cir.1989) (per curiam), the level of outrageousness needed to prove a due process violation "is quite high," Gunderson, 904 F.2d at 410. Indeed, the government's behavior must shock the conscience of the court. Id. (citing Rochin v. California,

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342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)).

We simply cannot characterize the government's conduct in Jacobson's case as outrageous. Having discovered Jacobson's name on a pornographer's mailing list, the government pursued its investigation over a period of twenty-nine months by mailing surveys, letters, and catalogues to Jacobson. Jacobson responded, remitting a membership fee, requesting more information, corresponding with another...

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