U.S. v. Kussmaul, 92-3314

• Decision Date: 18 February 1993
• Docket Number: No. 92-3314,92-3314
• Citation: 987 F.2d 345
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter J. KUSSMAUL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 345

987 F.2d 345

61 USLW 2578

UNITED STATES of America, Plaintiff-Appellee, v. Walter J. KUSSMAUL, Defendant-Appellant.

No. 92-3314.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 9, 1992.

Decided Feb. 18, 1993.

Salvador A. Dominguez (argued and briefed), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.

Douglas W. Shaw (argued and briefed), Columbus, OH, for defendant-appellant.

Before: GUY and BATCHELDER, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

BATCHELDER, Circuit Judge.

Defendant-appellant Walter J. Kussmaul appealed his conviction on one count of causing non-mailable matter, in this case obscene pornographic videotapes, to be delivered by mail in violation of 18 U.S.C. § 1461.

I.

In October 1989, using a mailing list obtained from an earlier prosecution of an adult film mail-order company, Government agents sent the appellant, Walter J. Kussmaul, a letter in the company's periodic mailing aimed at attracting the interest of those customers interested in child pornography. The letter informed the recipient that he could write to an outfit in Belgium, "Artiste Internationale," to get information on "extremely hard to find erotica" which the company did not stock "due to certain bans and stateside attitudes." The agent in charge, Agent Rich of the Customs Service, testified that he included the reference to Belgium and the phrases "hard to find erotica" and "stateside bans" since in his law enforcement experience, child pornographers used such references as "code words" in publicly advertising their wares, which are often produced in Belgium. Agent Rich also noted that this "coded" phrasing would serve to screen out those not interested in obtaining child pornography.

On November 9, 1989, Mr. Kussmaul wrote to the Belgian address asking for a "catalog or list of hard to find erotica." He signed and included, on his own initiative, a preprinted "affidavit" he had cut out of a magazine or catalogue declaring him to be at least age 19 and disclaiming any request to the Post Office to screen "sexually oriented advertisements" addressed to him. In December, a U.S. Customs Service agent received the letter in Belgium at the fake address, and forwarded it to Agent Rich in Florida. To ensure that Mr. Kussmaul would specify his intentions, Agent Rich sent another letter under the "Artiste Internationale" name, explaining that due to "voluminous inventory" the company did not maintain a general catalogue, and that therefore the recipient should inform the company as to exactly the nature of the material he wanted. Again, the agent was careful not to mention pornography or obscenity in the letter. Mr. Kussmaul soon responded to this with another letter specifying his interest in "purchasing VHS tapes and magazines" portraying "Beastiality [sic]- women & animals" "Hard S & M--female submissive" and "teen sex." He also enclosed a copy of his earlier correspondence.

Satisfied that Mr. Kussmaul's prompt and specific responses indicated his willingness and intention to break Federal postal laws, Agent Rich mailed Mr. Kussmaul a catalogue containing explicit descriptions of various magazines and videos, including the age of the actors and the type of sexual activity portrayed. In April of 1990 Mr. Kussmaul ordered two videos, both of which the catalogue described as explicitly depicting children aged nine, twelve, and fourteen engaging in sexual acts with adult men. He enclosed payment by money order in the amount of $99.75. On November 7, 1990, an undercover postal inspector delivered the videotapes received from Agent Rich to Mr. Kussmaul's home, where the defendant accepted the tapes. The Customs Service, assisted by other agents, soon entered and searched Mr. Kussmaul's home. Agents found the delivered tapes in the basement chimney ash cleanout. They also discovered a number of videotapes, of both adult and general nature.

On August 15, 1991, Walter Kussmaul was indicted on two counts of violating the mail laws, one charging him specifically with ordering child pornography, and the second charging him with ordering obscene material through the mail. ¹ A jury trial before the Honorable George C. Smith commenced on December 17, 1991, and on December 19, 1991, the jury returned its verdicts, finding the appellant not guilty on Count 1 and guilty on Count 2 of the indictment.

On March 31, 1992, the appellant was sentenced to serve a twelve month term of imprisonment followed by a 3-year period of supervised release to be served upon his release from imprisonment, and ordered to pay a $50 special assessment. The appellant filed a timely notice of appeal.

II.

In defending himself against the two original charges, Mr. Kussmaul argued in the District Court that the Government had entrapped him. Armed with the recent Supreme Court decision in Jacobson v. United States, --- U.S. ----, 112 S.Ct 1535, 118 L.Ed.2d 174 (1992), which held that the Government had entrapped the appellant into ordering child pornography through the mails by means of an intensive sting operation, Kussmaul now vigorously reasserts that argument, claiming entrapment as a matter of law. Although acquitted of the child pornography charge, he notes that the Government aimed its sting operation at child pornography offenders; the Government used the evidence it obtained during the operation to prosecute the mailing of obscenity charge for which Kussmaul ultimately was convicted. For that reason, Kussmaul contends that Jacobson remains applicable to the question of entrapment. We agree. ²

The courts must be vigilant in protecting citizens against agents of the Government who "implant in the mind of an innocent person the disposition to commit [a crime] and induce its commission in order that they may prosecute." Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212-13, 77 L.Ed. 413 (1932). At the same time,

[i]t 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 employed to catch those engaged in criminal enterprises.

Id. at 441, 53 S.Ct. at 212. The Government must therefore prove beyond a reasonable doubt that a predisposition to commit the particular crime for which the defendant was indicted existed prior to and independent of Government contact with him. Jacobson, --- U.S. at ----, ---- 112 S.Ct. at 1540, 1541. Predisposition is "the defendant's state of mind before his initial exposure to government agents." United States v. Johnson, 855 F.2d 299, 303 (6th Cir.1988).

In Jacobson, Government agents maintained continual contact with the defendant corresponding with him and sending him leaflets purporting to be from organizations dedicated to free speech rights, "sexual freedom" and "freedom of choice," which suggested that child pornography, pedophilia and other aberrations should be legalized. Jacobson, --- U.S. at ----, 112 S.Ct. at 1542. Only after some two and a half years did the agents provide the defendant with the opportunity to order child pornography through the mail, and then convicted him when he took the bait. The Court held that the jury was left with no way adequately to determine that "petitioner possessed the requisite predisposition prior to the Government's investigation and that it existed independent of the Government's many and varied approaches to petitioner." Id.

Mr. Kussmaul argues that the Government never should have come after him in the first place. He reads Jacobson as holding that the Government's proof of predisposition must be established with evidence obtained prior to its initial contact with the targeted individual, and notes that nothing the Government knew about the film company mailing list suggested that he in particular would be a likely lawbreaker. This reading of Jacobson is flawed. As Justice O'Connor stressed in dissent,

[t]he 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 defendant's predisposition before it ever seeks to contact him. Surely the Court cannot intend to impose such a requirement, 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.

Jacobson, --- U.S. at ----, 112 S.Ct. at 1545 (O'Connor, J., dissenting) (emphasis in original). The law of entrapment treads fine lines; whether Government conduct proves to be entrapment depends largely on the circumstances of its operations. On the one hand, as Justice O'Connor stresses in dissent, the Government does not need to establish a reasonable suspicion of illegal activity before instituting a sting operation, since such a requirement would obviate the need to have such operations. On the other hand, the courts have never allowed the ends to justify the Government's means; agents may not force the hand of a sting target into violating the law, and then claim that only someone predisposed to commit a crime is capable of doing so. Jacobson does not prohibit the Government from inducing bad people to commit crimes; it simply strengthens the requirement that the Government prove that its agents did not induce the defendant's criminality. Jacobson requires that where a defendant raises entrapment, the Government prove, beyond a reasonable doubt, that the defendant had the inclination to commit the crime with which he is charged, and that his criminal inclination did not possibly result from the seductions of Government agents.

Most importantly, the very language of Jacobson itself has anticipated and distinguished Mr. Kussmaul's situation and argument. Where the Government simply gives the defendant "an opportunity to commit a crime," a...