USA v. Poehlman

• Decision Date: 06 December 1999
• Docket Number: No. 98-50631,98-50631
• Citation: 2000 WL 821290,217 F.3d 692
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK DOUGLAS POEHLMAN, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 692

217 F.3d 692 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK DOUGLAS POEHLMAN, Defendant-Appellant.

No. 98-50631

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted December 6, 1999--Pasadena, California

Filed June 27, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Edward M. Robinson, Torrance, California, argued the cause for the defendant-appellant.

Luis Li, Assistant United States Attorney, Los Angeles, California, argued the cause for theplaintiff-appellee. With him on the briefs were Alejandro N. Mayorkas and George S. Cardona.

Appeal from the United States District Court for the Central District of California; Shirley W. Kram, Senior District Judge, Presiding. D.C. No. CR-97-01008-DDP-01

Before: Betty B. Fletcher, Alex Kozinski and David R. Thompson, Circuit Judges.

Opinion by KOZINSKI; Dissent by THOMPSON

KOZINSKI, Circuit Judge.

Mark Poehlman, a cross-dresser and foot-fetishist, sought the company of like-minded adults on the Internet. What he found, instead, were federal agents looking to catch child molesters. We consider whether the government's actions amount to entrapment.

I

After graduating from high school, Mark Poehlman 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.

These events left Poehlman lonely and depressed. He began trawling Internet "alternative lifestyle" discussion groups in an effort to find a suitable companion. Unfortunately, the women who frequented these groups were less accepting than he had hoped. After they learned of Poehlman's proclivities, several retorted with strong rebukes. One even recommended that Poehlman kill himself. Evidently, life in the HOV lane of the information superhighway is not as fast as one might have suspected.

Eventually, Poehlman 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." Reporter's Transcript of Proceedings, United States v. Poehlman, No. CR 97-1008SWK, Thurs., May 21, 1998 at 26 (Testimony of Mark Poehlman).¹

Sharon responded positively to Poehlman's e-mail. She said she had three children and was "looking for someone who understands us and does not let society's views stand in the way." She confessed that there were "some things I'm just not equipped to teach [the children]" and indicated that she wanted "someone to help with their special education." The full text of her first responsive e-mail² is set out in the margin.³

In his next e-mail, also set out in the margin, ⁴ Poehlman disclosed the specifics of his "unique needs. " He also explained that he has strong family values and would treat Sharon's children as his own. Sharon's next e-mail focused on the children, explaining to Poehlman that she was looking for a "special man teacher" for them but not for herself. She closed her e-mail with the valediction, "If you understand and are interested, please write back. If you don't share my views I understand. Thanks again for your last letter. " Appellant's Excerpts of Record at Tab 5 (Aug. 1, 1995).

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," id. (Aug. 2, 1995), and he reiterated his interest in Sharon.⁵

Sharon again rebuffed Poehlman's interest in her:"One thing I should make really clear though, is that there can't be anything between me and my sweethearts special teacher." Id. (Aug. 2, 1995). She then asked Poehlman for a description of what he would teach her children as a first lesson, promising "not to get mad or upset at anything written. If I disagree with something I'll just say so. I do like to watch, though. I hope you don't think I'm too weird." Id.

Poehlman finally got the hint and expressed his willingness to play sex instructor to Sharon's children.⁶ In later e-mails, Poehlman graphically detailed his ideas to Sharon, usually at her prompting. Among these ideas were oral sex, anal sex and various acts too tasteless to mention. The correspondence blossomed to include a phone call from Sharon and hand written notes from one of her children. Poehlman made decorative belts for all the girls and shipped the gifts to them for Christmas.

Poehlman and Sharon eventually made plans for him to travel to California from his Florida home. After arriving in California, Poehlman proceeded to a hotel room where he met Sharon in person. She offered him some pornographic magazines featuring children, which he accepted and examined. He commented that he had always looked at little girls. Sharon also showed Poehlman photos of her children: Karen, aged 7, Bonnie, aged 10, and Abby, aged 12. She then directed Poehlman to the adjoining room, where he was to meet the children, presumably to give them their first lesson under their mother's protective supervision. Upon entering the room however, Poehlman was greeted by Naval Criminal Investigation Special Agents, FBI agents and Los Angeles County Sheriff's Deputies.

Poehlman was arrested and charged with attempted lewd acts with a minor in violation of California law. He was tried, convicted and sentenced to a year in state prison. Two years after his release, Poehlman was again arrested and charged with federal crimes arising from the same incident. A jury convicted him of crossing state lines for the purpose of engaging in sex acts with a minor in violation of 18 U.S.C. S 2423(b). He was sentenced to 121 months. Poehlman challenges the conviction on the grounds that it violates double jeopardy and that he was entrapped. Because we find there was entrapment, we need not address double jeopardy.

II

"In their zeal to enforce the law .. . Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). On the other hand, "the fact that officers or employees of the Government merely afford opportunity 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." Sorrells v. United States, 287 U.S. 435, 441 (1932). The defense of entrapment seeks to reconcile these two, somewhat contradictory, principles.

When entrapment is properly raised, the trier of fact must answer two related questions: First, did government agents induce the defendant to commit the crime? And, second, was the defendant predisposed? We discuss inducement at greater length below, see page 698 infra but at bottom the 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, which we also discuss at length below, see page 6893 infra, is the defendant's willingness to commit the offense prior to being contacted by government agents, coupled with the wherewithal to do so. See United States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir. 1994) (en banc). While our cases treat inducement and predisposition as separate inquiries, see, e.g., United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995), the two are obviously related: If a defendant is predisposed to commit the offense, he will require little or no inducement to do so; conversely, if the government must work hard to induce a defendant to commit the offense, it is far less likely that he was predisposed. See Hollingsworth, 27 F.3d at 1200.

To raise entrapment, defendant need only point to evidence from which a rational jury could find that he was induced to commit the crime but was not otherwise predisposed to do so. See United States v. Staufer, 38 F.3d 1103, 1108 (9th Cir. 1994). Defendant need not present the evidence himself; he can point to such evidence in the government's case-in-chief, or extract it from cross-examination of the government's witnesses. The burden then shifts to the government to prove beyond a reasonable doubt that defendant was not entrapped. See Jacobson, 503 U.S. at 549.

The district court properly determined that the government was required to prove that Poehlman was not entrapped and gave an appropriate instruction. The jury nonetheless convicted Poehlman, which means that either it did not find that the government induced him, or did find that Poehlman was predisposed to commit the crime.⁷ Poehlman argues that he was entrapped as a matter of law. To succeed, he must persuade us that, viewing the evidence in the light most favorable to the government, no reasonable jury could have found in favor of the government as to inducement or lack of predisposition. See United States v. Thickstun , 110 F.3d 1394, 1396 (9th Cir. 1997).

Inducement

"Inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations,...