United States v. Kopstein
759 F.3d 168
2d Cir.2014Background
- Kopstein was convicted in the Eastern District of New York of transporting and shipping child pornography; his sole defense was entrapment.
- An undercover agent posed as a 12-year-old girl; Kopstein initiated the chat, sent nude photos of himself, and eventually transmitted child pornography after inducements.
- The district court gave entrapment instructions that the majority found confusing and supplemented them after jury questions.
- A lesser-included offense instruction on possession of child pornography was given; jurors were unsure whether entrapment negated guilt on the transport/shipping counts.
- The majority vacated Kopstein’s conviction and remanded for a new trial; the dissent would affirm, arguing the errors were not preserved or prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to vacatur for jury-instruction error on entrapment | Kopstein’s entrapment defense was properly presented. | Majority errors were plain and prejudicial. | Conviction vacated; new trial ordered. |
| Effect of supplemental instructions on entrapment burden | Supplemental language did not distort entrapment burden. | Supplemental charge created confusion about burden and triggered vacatur. | No reversible error; or in any case, not clearly prejudicial. |
| Preservation of alleged errors | Kopstein preserved the entrapment charge; objections to supplemental charge were limited. | Many claimed errors were not preserved. | Findings depend on plain-error review; majority departed from preservation law. |
| Adequacy of main entrapment instruction | Main charge correctly stated entrapment elements. | Language in main charge misled jury about entrapment’s effect on elements. | Not clearly erroneous under Holmes-style review; vacatur denied. |
Key Cases Cited
- United States v. Rossomando, 144 F.3d 197 (2d Cir.1998) (reversal when supplemental charge leaves essential element in doubt)
- United States v. Hastings, 918 F.2d 369 (2d Cir.1990) (supplemental instruction misleading or incomplete can require reversal)
- United States v. Velez, 652 F.2d 258 (2d Cir.1981) (review of supplemental charge for clarity and impact on defense)
- Mathews v. United States, 485 U.S. 58 (U.S. 1988) (entrapment requires government inducement and lack of predisposition)