U.S. v. Osborne

• Decision Date: 12 August 1991
• Docket Number: No. 90-5691,90-5691
• Citation: 935 F.2d 32
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Floyd OSBORNE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 32

935 F.2d 32

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Floyd OSBORNE, Jr., Defendant-Appellant.

No. 90-5691.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 4, 1991.

Decided May 28, 1991.

As Amended June 21, 1991.

As Amended July 17, 1991.

As Amended Aug. 12, 1991.

Anthony W. Harrison, Sr., argued, Harrison, North, Cooke & Landreth (Susan Hayes, on brief), Greensboro, N.C., for defendant-appellant.

Lisa Blue Boggs, Asst. U.S. Atty., argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), Greensboro, N.C., for plaintiff-appellee.

Before ERVIN, Chief Judge, WILKINSON, Circuit Judge, and SMITH, District Judge for the Eastern District of Virginia, sitting by designation.

ERVIN, Chief Judge:

This appeal arises out of alleged government entrapment in connection with a child pornography sting operation. We are presented with the question of whether the district court may properly rule prior to trial that no entrapment existed as a matter of law, thus preventing the defendant from presenting evidence at trial on the defense of entrapment. We hold that, although pretrial resolution of an entrapment motion is rarely appropriate, on the facts of this case the district court did not err in refusing to allow the issue of entrapment to go before the jury. Accordingly, we affirm the conviction and sentence.

I.

In the early summer of 1989, Perry L. LePere, a United States Postal Inspector in Nashville, Tennessee, placed an advertisement in a publication entitled "A & B Video." The ad read: "BR-1001 TN. will convert 8 mm to video. Also will buy, sell or trade for bizarre videos (B/D, S/M, Young Girls, etc.) T.Y. P.O. Box 22404, Nashville, TN 37202-2404." In response to this ad, Inspector LePere received a letter postmarked July 3, 1989 from Floyd Osborne, Jr., indicating his interest in purchasing "XXX young girl (teenagers) videos." LePere then mailed Osborne a cover letter, questionnaire, and printed sheet identifying available film services. Osborne completed the questionnaire and returned it. ¹ On the questionnaire Osborne noted that he had a special interest in explicit material featuring teenaged girls ages 13-17. A handwritten note attached to the questionnaire gave an address in Eden, N.C. to be used for UPS delivery purposes, "to prevent government snooping." Upon receipt of the questionnaire, LePere mailed Osborne a cover letter and video catalog which offered five adult and five child pornographic videos for sale.

Subsequently, LePere received a completed order form from Osborne requesting two child pornographic videos, accompanied by Osborne's personal check for the purchase amount. LePere had the videos prepared and arranged for a federal search warrant and a controlled delivery of the two tapes to the address in Eden, North Carolina that Osborne had designated. At the time the package was delivered to Osborne's residence Osborne was not at home, so his brother Albert received the package.

Officers subsequently executed the federal search warrant and recovered the videotapes from Osborne's residence. The package containing the tapes was found sealed up with other mail addressed to Floyd Osborne. Albert Osborne testified that he had left this package for "previewing" by his brother, and that he himself knew nothing of the package's contents. ²

Osborne was arrested and indicted in the Middle District of North Carolina on charges that he had knowingly received and caused to be received two videotapes of minors engaged in sexually explicit conduct as defined by 18 U.S.C. Sec. 2256, and that the videotapes had been shipped in interstate commerce, all in violation of 18 U.S.C. Sec. 2252(a)(2). Osborne stipulated that the two videotapes he ordered were video films which visually depicted minors engaging in sexually explicit conduct; that these were the tapes he ordered; and that they were transported in interstate commerce. Nevertheless, Osborne pled not guilty to these charges and filed a pretrial motion to dismiss the indictment on the grounds that the government had engaged in entrapment and in outrageous conduct violative of his rights to due process of law.

The district court denied Osborne's motion, ruling as a matter of law that the government's conduct had not been sufficiently outrageous to deprive Osborne of his due process right. Further, the court found that Osborne's ready response to the government's solicitation indicated a level of predisposition toward the crime charged which rendered the defense of entrapment unavailable to him at trial.

The trial proceeded, and the jury found Osborne guilty as charged. At the sentencing hearing, the district court applied the federal Sentencing Guidelines to determine Osborne's sentencing range and refused to depart downward on the grounds of outrageous government conduct. ³ Noting that Osborne had no previous arrests or convictions for any similar offense, the court sentenced Osborne to the lowest end of the guideline range: 12 months' imprisonment, a $3000 fine, and 3 years' supervised release including 375 hours of community service. Osborne then filed this appeal.

II.

Osborne's appeal of his conviction is primarily based on the district court's pretrial denial of two defenses: the constitutional defense of outrageous government conduct, and the statutory defense of entrapment. In his pretrial motion to dismiss the indictment, Osborne alleged that the government's conduct in placing the advertisement and conducting the sting operation to uncover violations of 18 U.S.C. Sec. 2252(a)(2) was so outrageous as to have violated his fifth amendment right to due process of law, and that this conduct induced him to violate the law and thus constituted entrapment. We review the district court's decision to resolve these issues prior to trial de novo for constitutional error and for abuse of discretion. United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir.1986).

Due Process Claim

Osborne's due process argument has two prongs. First, Osborne contends that constitutional norms of due process require that the government demonstrate that it had a reasonable suspicion of wrongdoing on his part before it began the undercover investigation. For this constitutional principle Osborne relies on United States v. Luttrell, 889 F.2d 806, 813 (9th Cir.1989), en banc reh'g granted, 906 F.2d 1384 (9th Cir.1990), in which the Ninth Circuit Court of Appeals held that constitutional norms are violated when, without reasoned grounds, officers approach apparently innocent individuals and provide them with a specific opportunity to engage in criminal conduct. The Ninth Circuit, however, is the only appellate jurisdiction so far to have so ruled. Cf. United States v. Jacobson, 916 F.2d 467 (8th Cir.1990) (en banc); ⁴ United States v. Jenrette, 744 F.2d 817 (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 (10th Cir.1984); United States v. Thoma, 726 F.2d 1191 (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 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Myers, 635 F.2d 932 (2d Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980). In this Circuit the contrary principle has been fixed in the law for almost 70 years, Newman v. United States, 299 F. 128 (4th Cir.1924), and is still viable. United States v. DeVore, 423 F.2d 1069 (4th Cir.1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971); United States v. Velasquez, 802 F.2d 104 (4th Cir.1986) (both holding that the government need not have reasonable grounds to suspect illegal conduct before offering the opportunity to commit a crime).

Moreover, Luttrell's holding was developed in the context of a case in which the government agent targeted the specific defendant and contacted him personally to offer him the inducement to commit a particular crime. Luttrell, supra, 889 F.2d at 808. The government even persevered with the agreed-upon scheme after the defendant stated that he wanted to cancel the deal. Id. at 809. ⁵ In Osborne's case, there was no personal solicitation by the government. In responding to the instructions it received from Osborne, the government moreover provided him at each stage with opportunities to withdraw from his course of action. Yet, even in a Luttrell-like situation, we have held that the provision of an opportunity to commit a crime is merely solicitation incapable of inducing an otherwise innocent person to commit the crime. Velasquez, supra, 802 F.2d at 106.

Osborne next asserts that, whether or not he was predisposed to commit the crime at issue, the government's conduct was so outrageous that it violated his right to due process of law. In order to constitute a due process violation, the government's conduct must be so outrageous as to shock the conscience of the court. Jacobson, supra, 916 F.2d at 469 (citing Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)). Government conduct is not outrageous simply because it may be somewhat offensive. United States v. Goodwin, 854 F.2d 33, 37 (4th Cir.1988). Since the appellate courts have over time continued to demonstrate a high shock threshold in the presence of extremely unsavory government conduct, Osborne's characterization of the government's conduct in this case is bound to fail. See, e.g., United States v. Simpson, 813 F.2d 1462 (9th Cir.1987) (FBI manipulated woman into providing sexual favors to a targeted person in order to lure him into selling heroin to undercover agents).

In the most recent appellate case involving a defendant who had been convicted for receiving child pornography through the mails in violation of 18 U.S.C. Sec. 2252(a)(2), the Eighth Circuit Court of Appeals, sitting en banc, vacated the earlier panel decision, 893 F.2d 999 (...