*1 has Congress problem resolved of un- formed the Rolling Stones. In addi- tion, expectations that had settled arisen ABKCO that contends whatever split. from the circuit We conclude that claim Delta Haze might be able to state is 303(b) § in applied should be resolving Again, time-barred. these issues are best appeal. present left the district court on remand. (citations omitted). agree, Id. We Because we cannot tell from the district 303(b) § and that hold controls. Because why court’s order it dismissed the counter- 303(b) controls, § the Johnson versions of (it claims could simply have been that the Stop Love Breakin’ in Vain Down necessarily given counterclaims fell the de- public were not in the domain solely on cision that the Johnson versions in were being account their phono- released on domain), public we vacate the order in records the 1930s.4 dismissing so, In doing counterclaims. way we intimate no view one or the other IV on the merits of the any counterclaims or Delta Haze also asks for reversal of the may that respect motions be made with district court’s denial of its cross-motion them. and, that, summary judgment failing To summarize: we reverse the order argues judgment that should have been and judgment granting ABKCO’s motion granted on its counterclaims. To the ex- for summary judgment; we judg- order tent that its cross-motion is the mirror ment to be entered for Delta Haze that the ABKCO’s, image of Delta Haze is entitled Robert Johnson versions of Love in Vain judgment to a that declaring the Johnson Stop Breakin’ Down did not enter the versions of Love in Stop Vain and Brea- public domain phonorecords when embody- kin’ Down did public not enter the domain ing 1978; those works were released before when the on which phonorecords judgment we vacate the for ABKCO were recorded were released 1938 and on Delta Haze’s counterclaims. this, however, Beyond 1939. we believe REVERSED and REMANDED. the district court is in a position better than we to sort out the issues that remain. example,
For argues Delta Haze that AB- can ownership
KCO have no interest Rolling Stones’ versions of the two
works Rolling because The Stones added no original material. may, This or may America, UNITED STATES
not, raise point triable issues—a that we Plaintiff-Appellee, assume the district court has never consid- v. ered, given ruling its the Johnson Douglas POEHLMAN, Mark works public were domain when The Defendant-Appellant. Rolling adaptations. Stones made its No. 98-50631. argues that
ABKCO dismissal of Delta Haze’s counterclaim proper because it United Appeals, States Court of never threatened to infringement, sue for Ninth Circuit. therefore there was no controversy be- Argued and Submitted Dec. give tween them to the district court sub- Filed June ject jurisdiction. matter But we cannot be this, certain of for the ap- counterclaims
pear to contest ABKCO’s claim to any
protectable the adaptation per- 303(b)
4. § Given our applies, improper conclusion that because there were triable issues of we do not argument reach Delta Haze’s regarding fact songs whether the were re- Cienega, even under La the district court's leased with Johnson’s consent or authoriza- grant summary judgment to ABKCO was tion. *3 to his wife that Poehlman admitted
When to cross- compulsion control his he couldn’t Air dress, him. did the she divorced So Force, early him into retire- which forced ment, discharge. with an honorable albeit lonely and These events left Poehlman trawling Internet began He depressed. groups discussion lifestyle” “alternative companion. an effort to find suitable frequented Unfortunately, the women who than he groups accepting were less these *4 Torrance, Robinson, Califor- M. Edward they After learned of Poehl- hoped. had nia, defendant- cause for the argued the several retorted with proclivities, man’s appellant. even recommended strong rebukes. One Li, States Attor- Assistant United Luis Evidently, life that Poehlman kill himself. California, argued ney, Angeles, Los super- in the lane of the information HOV himWith plaintiff-appellee. for the cause might one have highway is not as fast as Mayorkas Alejandro N. briefs were on the suspected. George and S. Cardona. got positive a re- Eventually, Poehlman a woman named Sharon. action from correspondence with Poehlman started to an ad responded when he Sharon looking she indicated that she which family’s FLETCHER, her and for someone who understood KOZINSKI Before: preferred servicemen. THOMPSON, “unique needs” Judges. Circuit the ad and indicated Poehlman answered KOZINSKI; Dissent Opinion by rela- looking long-term for a that he “was THOMPSON. Judge mind marriage,” “didn’t tionship leading too.” children,” unique needs and “had KOZINSKI, Judge. Circuit Proceedings, Reporter’s Transcript Poehlman, a cross-dresser Mark Poehlman, 97- No. CR States v. United foot-fetishist, company of like- sought the Thurs., 1008-SWK, 1998 at 26 May Internet. What he adults on the minded Poehlman).1 Mark (Testimony of instead, found, agents looking were federal to Poehl- responded positively Sharon consider molesters. We to catch child three chil- said she had man’s e-mail. She actions amount government’s whether who “looking for someone and was dren entrapment. society’s not let us and does understands confessed way.” in the She views stand I just I’m not things that there were “some and indi- school, children]” equipped [the to teach high Mark graduating from After help Force, wanted “someone he cated that she the Air where joined The full text education.” Eventually, with their years. nearly remained for out in is set responsive e-mail2 children. of her first and had two he married got In the and Poehlman. Sharon produce the between government was unable to 1. The e-mail, trial, are breezy, style of there informal original but Poehl- e-mail at text of the syntax spelling and grammatical, undisputed testimony as to its numerous man offered indicating messages. Because errors in the substance. be too dis- [sic] mistake with each poses correcting all of the errors tracting, and in the in this case is 2. Much of the evidence meaning the mes- altering the risk of messages and forth sent back form of e-mail margin.3 again your Thanks Appel- last letter.” Excerpts lant’s of Record at (Aug. Tab 5 e-mail, In also out in his next set margin,4 specifics Poehlman disclosed the “unique explained of his needs.” He also Poehlman replied by expressing uncer- family strong that he has values and would tainty as to what by special Sharon meant treat Sharon’s children as his own. Shar- man teacher. He noted that he would on’s next e-mail focused on the teach “proper give the children morals and explaining to Poehlman that she was look- needed,” support them where it is id. ing “special for a man teacher” for them 2, 1995), (Aug. and he reiterated his inter- but not for herself. She closed her e-mail est Sharon.5 valediction, you “If understand interested, again Sharon rebuffed please and are write back. If Poehlman’s inter- you don’t my share views I thing understand. est her: “One I should make sages, reproduce messages we anything..(g)„ their for humor, I also have a sense form, original warts all. your as far as are con- children (as my cerned I will treat them as own I answering my posting. got 3. Thanks for I me) my boys would treat if I had them with responses, yours lot of but for some reason huge family I have values and like kids and caught my eye. alright *5 seem to like me too. well now you myself. I’ll tell a little about I’m me, you you know all about if are still divorced and have children. We are a back, please interested then write if not and very family. looking close I’m for someone why you I would understand didn’t then I who understands us and not does let soci- you finding wish person all the best in ety’s way. views stand in the I’ve had to be you looking you are my for. if wish to call sweethearts, my both mother and father to 904-581-5442, number is I am not home a but things just there are some I'm not lot due to work and but school there is an equipped to looking teach them. I’m for to, ( answering only machine that I listen I help special someone to with their edu- you alone) day. didn’t th live have a nice cation. Mark interest, you If ideas, have your an I'd love to hear Appellant’s Excerpt of (July Record at Tab 5 experiences. desires and If this 31, 1995). you, doesn't interest I understand. Appellant's Excerpts (July of Record at Tab 5 Sharon, 5.Hi 27, 1995). name, happy finnally your so to learn I am There, pleasant 4. Hi surprise talk about a to teasher, being interested in this but you, a see answer from I too am divorced and honesty really all I exactly don’t know boys living they have two not with me are 9 you expect what me to teach them other and 6. live with upper their mother in proper than give support morals and to get very N.Y. I don’t to see them often matter them where it is needed. of fact years its been almost two since last I your Can I ask how old sweethearts are and them, planning trip saw I am a to see them you telling if don’t mind me what kind of now. teachings you expect give do me to them? I am retired Air years Force after 16.8 I you But I will tell that I am interested in retirement, early took the decided it was too, you part their mom would be of the get time to out living and work for a picture right? why with them this is I tell again..(g) I extremely am honest and like, you myself all about and what I cause I straight type guy forward play of I don't you ahve to be hope honest and tell I would games head and don't like to have them you support enjoy sexually and me played against you straight me. I tell out company hopefully well as in and love and tv, open and meaning that I am a in house I go the sexual relations that with it. enjoy wearing rather hose and. heels inside you Hope your are well and sweethearts are house, not around small children of too, truly hope you well I to hear from course but enough when mine are old hopefully some more information about big understand I will tell them that and the for., you looking what are till then Have a my foot fetish I have only are about two very day. major problems nice open that need a minded woman, easy going Mark they say so as in the you wearing your Appellant's Excerpts movies if (Aug. don’t mind me at Record Tab 5 licking your 1995). hose and open toes then I am tried, law. He can’t be violation of California was that there though, is really clear year and sentenced to a state my sweethearts convicted between me anything release, years Two after his (Aug. prison. She Id. special teacher.” again charged arrested and description of Poehlman for then asked Poehlman arising from the same as a first with federal crimes teach her children he would what him lesson, upset crossing mad or incident. A convicted get “not to promising purpose engaging I lines for the disagree If state anything written. like to acts with a minor violation of 18 just say so. I do sex something I’ll 2423(b). § I’m He was sentenced to watch, you I don’t think U.S.C. hope though. challenges Poehlman months. Id. too weird.” that it violates grounds conviction on the and ex- finally got the hint Poehlman and that he was en- jeopardy double instruc- willingness play sex pressed find was en- trapped. Because we there e-mails, In later children.6 tor to Sharon’s need not address double trapment, we detailed his ideas to graphically jeopardy. Sharon, Among prompting. at her usually sex, anal sex and oral these ideas were II mention. The too tasteless to acts various to include blossomed correspondence “In zeal to enforce the law their and hand written call from Sharon phone may originate not agents ... Government children. Poehlman from one of her *6 548, 1535, 540, 112 118 S.Ct. 503 U.S. in arriving Cali- Florida home. After (1992). hand, On the other L.Ed.2d 174 fornia, to a hotel proceeded of the employees fact that officers or “the person. where he met Sharon room or merely opportunity afford Government maga- him pornographic offered some She the offense the commission of facilities for accepted which he featuring zines Artifice prosecution. not defeat the does that he He commented and examined. employed to catch stratagem may be and girls. at little Sharon always had looked enterprises.” in criminal engaged those photos of her chil- showed Poehlman also States, 435, U.S. v. United 287 Sorrells Karen, 7, Bonnie, 10, aged aged dren: (1932). 210, 441, L.Ed. 77 413 53 S.Ct. Poehl- 12. then directed Abby, aged She seeks to recon entrapment defense of room, he was adjoining where man to the two, contradictory, somewhat cile these children, presumably give to meet the principles. under their moth- them their first lesson entering supervision. Upon protective er’s properly is entrapment When however, greeted Poehlman was the room raised, answer two trier of fact must Investigation Special by Naval Criminal First, government did questions: related Angeles agents FBI and Los Agents, to commit the induce the defendant agents County Deputies. Sheriffs And, second, the defendant was crime? discuss inducement predisposed? We charged Poehlman was arrested below, infra, 698 page see greater length acts with a minor attempted lewd right way to dress least in the willing to teach learn house, very open minded and 6. I am expected dress as taught. you would be everything you them wish example good prove to be a them also and help girls I would them are all then If punishment. for them or face protect by themselves tak- to learn how to (Aug. Excerpts at Tab 5 Appellant's of Record very submis- ing men I can be control over 3, 1995). women, though they right will to the sive 698 government
but at bottom the induces a properly The district court de it creates a crime when incentive termined that government was re to commit the for the defendant crime. quired to prove that Poehlman was not can consist of that anything This incentive entrapped gave an appropriate in materially the balance of alters risks and jury struction. The nonetheless convicted bearing on defendant’s rewards decision Poehlman, which means that either it did offense, whether to commit the so as to him, not find that induced that engage increase the likelihood he will or did find that Poehlman predisposed particular in the criminal conduct. if Even to commit the argues crime.7 Poehlman crime, induces the howev- entrapped he was as a matter of law. er, defendant can still be convicted if the succeed, that, To persuade he must us predis- trier of fact determines he was viewing the light evidence most posed to offense. Predisposi- commit the government, favorable to the no reason tion, below, which length we also discuss at able could have found favor of the page infra, see 703 is the defendant’s will- government as to inducement or lack of ingness prior to commit the offense to predisposition. See United States v. being government agents, contacted Thickstun, (9th 1394, 110 F.3d 1396 Cir. coupled with the wherewithal to do so. 1997). See Hollingsworth, United States v. 27 (7th Cir.1994) (en banc).
F.3d
Inducement
While our
pre-
cases treat inducement and
see,
disposition
separate inquiries,
e.g.,
“Inducement can
any govern
be
McClelland,
United States v.
72 F.3d
ment conduct creating
substantial
risk
(9th Cir.1995),
the two are obviously
that an
law-abiding
otherwise
citizen would
predisposed
related:
If a defendant is
offense,
commit an
including persuasion,
offense,
require
commit the
he will
little or
threats,
fraudulent representations,
coer
so;
no
conversely,
inducement to do
if the
tactics, harassment,
cive
promises of re
government must work hard to induce a
ward,
pleas
need,
or
based on
sympathy or
offense,
defendant to commit the
it is far
Davis,
friendship.” United States v.
likely
less
that he was predisposed. See
(9th Cir.1994).
F.3d
Hollingsworth,
Id. Poehlman neverthe- Jacobson, In government the conceded familial continued less to seek a relation- inducement based on the fact that the her ship daughters, Sharon10 and ex- defendant there committed the offense af pressing ready quit job himself to and ter numerous govern contacts from the country move across the to be with them. spanning ment over years, two during the
As Justice Frankfurter noted course of which government agents Sherman, in his in concurrence “wav[ed] banner of individual rights disparaged] and legitimacy and consti every Of course in case of this kind the tutionality of efforts to restrict the avail intention that the particular crime be ability sexually explicit materials.” Ja originates committed with the police, cobson, 552, 112 503 U.S. at S.Ct. 1535. In and without their inducement the crime so, doing “the only Government not excited per- would not have occurred. But it is petitioner’s in sexually explicit ma fectly clear ... where police [that] by terials banned law but also exerted effect simply opportunity furnished the pressure substantial petitioner on crime, obtain for the commission of the and read such part material as of a fight this is not enough enable the defen- against and censorship infringement of in escape dant to conviction. dividual rights.” Id. Jacobson is consis States, 369, Sherman v. United 356 U.S. Sherman, with prior tent cases such as (1958) 819, 2 78 S.Ct. L.Ed.2d 848 government where the played upon defen (Frankfurter, J., concurring). Whether user, dant’s as a drug weakness and Sor- police did provide oppor- more than an rells, where the agent called tunity they actually induced the —whether upon loyalty defendant’s to a fellow war crime, that term entrap- is used our veteran him to induce to commit the of ment jurisprudence depends on whether — fense. they employed some form of suasion that materially affected what Frank- Justice Jacobson, Cases like Sherman furter “self-struggle called the [to] resist very Sorrells demonstrate that even ordinary temptations.” Id. at 78 S.Ct. subtle if governmental pressure, skillfully (Frankfurter, J., concurring). can applied, amount to inducement. In Jacobson, government agents merely
Where for example, make themselves available to participate merely advanced the view the law transaction, that, a criminal standing question such as illegitimate or ready materials, buy illegal drugs, they or sell dering prohibited do defendant not induce commission “An joining fight against crime. would be in “a censor ... improper goes beyond ship ‘inducement’ infringement and the of individual an providing ordinary ‘opportunity to com rights.” Id. at In S.Ct. 1535. Sorrells, mit a An crime.’ ‘inducement’ consists of the inducement consisted of re- goes anticipate 10. RIGHT..grin..I gotta ya so far as to have dreams know.. already Sharon's rebuff of his advances. “I things but I still know the I write answeres part your nancy know ... answer no I have though anyway." Appellant's I write them you many expect get told times never to us to (Jan. 18, Excerpts of Record at Tab 5 together meaning you me *10 702 and confidence. friendship of expression of atmosphere in an made requests,
peated Sorrells, the risk of only did this diminish Not See among veterans. comradery detection, allayed it also fears defendant In 439-41, 210. Sher- 53 S.Ct. 287 U.S. at would be had that the activities might have of estab- man, consisted the inducement harmful, par- inappropriate, or with de- distasteful the friendly relationship lishing a her- claimed to have ticularly since Sharon sympathy his fendant, playing on then and experiences. See benefitted from such suffering drug a fellow self of supposed for the 1, Gamache, v. 156 F.3d Sherman, 78 United States 356 U.S. user. See Cir.1998) (“[T]he (1st agent Hollingsworth, the induce- In 819. S.Ct. activity illicit justifications for the provided the giving than nothing more ment was sex) ‘her- by describing (intergenerational the committing of the idea defendant was ‘liberal’ like glad that Gamache it. self as crime, the to do coupled with means she, her, the of that mother expressing at 1200-02. Hollingsworth, F.3d See of the ille- strongly approved the prece these against Measured that had activity, she gal explaining dents, govern is no doubt that there a child and this conduct as engaged in commit the Poehlman to ment induced her.”). to found it beneficial merely respond Had Sharon here. crime clear, moreover, It that Poehlman is enthusiastically to a from Poehl hint ed relationship an adult long continued to for daugh as her to serve man that he wanted Sharon, rela- with as well as a father-like mentor, certainly there would sexual ters’ He mar- tionship girls. offered with did inducement. But Sharon been no have job riage; quitting talked about correspon Throughout more. much California; traveling discussed moving to Poehlman, it Sharon made with dence offered his girls; with and the even Sharon a firm decision that had made she clear an benefits as military health insurance education, and children’s sexual about her refusing give Poehl- inducement. While having that she believed that her, relationship hope man of a sexual their sexual mentor be serve as fantasies; encouraged these she Sharon repeated She made best interest. their job out Poehlman’s went so far as check mentor, ex her own references to sexual The prospects California.11 could have mentored her plaining that he need on Poehlman’s played thus obvious he died in a car crash daughters, had not relationship, acceptance an for adult Excerpts of Rec Appellant’s in 1985. See family, and for a proclivities his sexual (Oct. paren While ord at Tab 5 fantasy deeper him into a sexual draw ever statutory not a tal consent is defense girls. involving imaginary world these an on it nevertheless can have effect rape, noted a case with ordinary resist As First Circuit “self-struggle [to] facts, Sherman, record clear very similar is “[t]he U.S. at temptations.” (Frankfurter, J., it insistence concurring). Government’s S.Ct. 819 manipulation of parent appellant and artful particularly is so where This skillfully finally drew him into the web casts the ac merely not consent but does Gamache, 156 by the detective.” parental responsibility spun act of tivity as an inter- Through aggressive its an F.3d at 10.12 the selection of a sexual mentor as Gamache, 156 F.3d at We today and See 12. go place the cable TV teroflaw. "I’ll 11. Gamache, reasoning they're hiring you applica- an rely see if and send on the therefore Disneyland out that is not I did find tion. hiring we our not the result. Nevertheless consider (it’s season) might the off but hire now entirely ruling consistent with Gamache. again spring Appellant’s time.” Ex- in the not, argue apparently, there did defendant 18, 1996). (Jan. cerpts at Tab 5 of Record law, perhaps be- entrapment as a matter dispute. was in cause of the evidence some defen- the issue was whether In Gamache 12. case, mostly the evidence is documen- In our entrapment an instruc- was entitled to dant tion, entrapped he was as mat- not whether *11 vention, government materially placed the affect- an order and was arrested after the ed the normal between balance risks and materials were delivered. As the Seventh crime, rewards from the commission of the in Hollingsworth, Circuit noted Jacobson thereby induced to commit “never government’s resisted” the offer. the offense. Hollingsworth, 27 at F.3d 1199. Despite willingness Jacobson’s to com- Predisposition mit the offense at the opportunity first could, nevertheless, The him, to offered the Supreme Court held guilty
have found Poehlman if it found that government had failed to show predisposed he was to commit the offense. predisposition because it had failed to Quite obviously, by the time defendant show that he would disposed have been to crime, actually commits the he will have buy government materials before the However, disposed become to do so. started its correspondence with him. The relevant assessing time frame for a defen fact that he willing was to illegal order disposition dant’s any comes before he has materials after he’d been harangued by contact government agents, which is years for over two was not why predisposition. doubtless it’s called deemed sufficient to predisposition. show Jacobson, See at U.S. 112 S.Ct. order, Jacobson’s decision to the Court (“ prosecution prove ‘[T]he must be reasoned, could have been a consequence yond reasonable [a] doubt that the defen government’s of the inducement. disposed dant was to commit the criminal By analogy, the fact that Poehlman will- prior act to being approached by first Gov ingly crossed state lines to have sex with ”) agents.’ ernment (quoting United States minors after his prolonged and steamy Whoie, (D.C.Cir. v. 925 F.2d 1483-84 cannot, correspondence alone, with Sharon 1991)). case, In our question is wheth support finding of predisposition. It is er there is support evidence to a finding all, possible, after that it govern- was the that Poehlman disposed was to have sex ment’s inducement that brought Poehlman prior with minors opening his corre point to the where willing he became spondence with Sharon. Jacobson, break the law. As in we must The government argues that Poehlman consider what evidence there is as to predisposed jumped because he at the Poehlman’s prior state of mind to his con- chance to cross state sexually lines to men- tact with Sharon. tor Sharon’s children at the opportu- first nity score, available to him. But if On this willingness sparse the record is in- test, deed; alone were the Jacobson it say would have is easier to what the record come differently. out The defendant there does not contain than what it does. The had been by government agents contacted produced no e-mails or chat posing organizations espousing postings view room expressed where Poehlman that child pornography children, should be made an interest sex with or even legal, and asked a variety of questions the view that sex with children should be about his in young boys. legalized. Jacob- Nor did government pro- and, son expressed notes, such an interest any tapes, magazines, duce photo- response “surveys,” expressed the view graphs, letters or similar items which dis- that such legal. children, materials should be made closed an interest sex with correspondence lasted years, despite two a thorough search of Poehlman’s the end of which the government (posing testimony home. There was no from the as one of organizations) these offered playmates of Poehlman’s his ex- him magazines sell some containing pic- anyone wife or indicating else that Poehl- tures of nude boys. immediately Jacobson man inappropriately had behaved toward are,
taiy,
essentially, agreed
and the facts
upon.
*12
morality,
the
concerns about
pressed
a
few
manifested
sexual
otherwise
or
children
serving as
ad,
of
appropriateness
to which
or
legality
them. Sharon’s
in
But Poehlman
clearly sug-
girls’
the
sexual mentor.
does not
responded,
Poehlman
smutty e-
writing
of
the was not convicted
children was to be
with
that sex
gest
mails;
crossing
convicted of
state
he was
relationship:
“Divorced
the
of
object
later,
lines,
to have sex
who un-
some six months
for someone
looking
of 3
mother
using
with
problem
needs. Ser- with minors.
family’s unique
my
derstands
predis-
at
e-mails as evidence of
E-mail me
Poehlman’s
Please
preferred.
vicemen
response
all in
Excerpts
is that
were
Appellant’s
position
Darlings3@aol.com.”
(undated).
by
suggestions
Sharon.
specific, pointed
one
While
at Tab
of Record
us what Poehlman’s
the The e-mails thus tell
that one or more of
might presume
had
minors,
government
was once the
phrase “unique
disposition
the
are
children
mind
idea of sex with
could,
implanted
chil-
in his
just
easily,
as
connote
needs”
disabilities,
not whether Poehl-
merely
but
or
Sharon’s
physical
dren with
in such conduct
engaged
would have
mother of three. man
single
of a
plight
in that direction
pushed
had he not been
to have re-
appear
not
Poehlman does
short,
In
Poehlman’s
government.
by
it mentions
her ad because
sponded to
provide proof
pre-
of
e-mails cannot
erotic
During
needs.
special
their
children or
in
says
he
nothing
because
disposition
page
exchanges, see
the crucial first few
state of mind
helps
them
differentiate his
focused Poehl-
when Sharon
supra,
695-97
intervention
government’s
to the
prior
needs, he
on those
man’s attention
from that afterwards.
had in
to what she
confusion as
expressed
ambiguity
exploiting
mind.
Instead of
that,
in
to infer
entirely plausible
It is
possi-
messages
suggest
in Sharon’s
Jacobson,
government’s gradu-
it was the
Poehlman
daughters,
her
bility of sex with
correspon-
response including
ated
e-mail
—
opposite
pushed the conversation
dence,
girls
from the
handwritten letters
direction,
figure
a father
to act as
offering
names,
Sharon,
of intimate
a
the use
“proper mor-
them
girls
to the
teach
Sharon,
sent to
photograph of Poehlman
of Record at
Excerpts
Appellant’s
als.”
handcrafting gifts
girls
for the
Poehlman’s
(Aug.
Tab 5
While
willingness
help
and Sharon’s
cau-
been borne of
might have
reluctance
joba
look for
Southern California-—that
might demur
way
drug
dealer
tion—the
point
to the
where he
brought Poehlman
prospective
unsure whether
when he is
lines for the
willing
to cross state
agent
fact re-
buyer
government
is a
—the
having sex with
three
purpose of
messages
earliest
mains that Poehlman’s
has
young girls.
Since the
(which
pre-
indicative of his
be most
would
predisposition,
as to
proof
the burden
mind)
support
provide no
existing state of
e-mails,
do not
like these
which
materials
predisposi-
case on
government’s
for the
preexisting propensity to
any
demonstrate
contrary, Poehlman’s reluc-
tion. To the
issue,
at
engage in the criminal conduct
ag-
more
to become
tance forced Sharon
that burden.
simply
carry
cannot
augmenting
gressive
suggestions,
in her
for inducement. See
the defendant’s case
say
not to
that state
This is
supra.
page 698-99
in
government’s
ments made after the
enthusiastic,
predis
can never be evidence of
protracted and ducement
Poehlman’s
If,
begins
position.
after the
the sexual acts he
descriptions
extreme
defendant,
makes it clear
inducing a
he
daughters
perform with Sharon’s
have committed the offense
are,
that he would
government,
to the
its
according
inducement, that would
even without the
predispo-
of Poehlman’s
strongest evidence
only
But
Indeed,
predisposition.
the idea of be evidence
got
sition.
once he
a state of
mind,
that indicate
Poehlman ex-
those statements
what Sharon had
law,
mind untainted
the inducement are rel-
run afoul of the
the courts should
Jacobson,
predisposition.
evant to show
553-54,
Poehlman’s
intervene.”
U.S.
Sharon,
protracted correspondence with
in
Poehlman Citro, F.2d at See that an ment’s inducement. clear patently it making evidence general reluctance induced to The defendant’s 1152. person innocent otherwise ” commit, weight. v. See Unit greatest act.’ United States illegal ly receives Cir.1992) (9th 1394, 1397 Thickstun, Skarie, 110 F.3d F.2d v. ed States omitted); v. (citation (9th Cir.1997). States see United (9th Manante, Cir. 44 F.3d absence of character and the Poehlman’s “govern- 1995) inducement (defining weigh factors that motive are two profit a substantial creates ment conduct heavily in Poehlman’s favor. law-abiding person that an otherwise risk history of a sexual not have a does crime”). though dur- Even will commit e-mail communications and his e- of Poehlman’s two weeks ing the first an interest in never revealed with Sharon with the mail communications relationship. any sexual profiting from re- as “Sharon” agent posing *14 however, factors, predisposition The other children, in no sexual vealed During government. in favor of the tip pur- began interpret Poehlman soon government the operation, the undercover as con- from Sharon vague e-mails posely mes- vague e-mail purposely constructed But United undertones. taining sexual cf. the claims that Poehlman sages. While (1st Gamache, 4 F.3d v. States the sexual conversa- government initiated Cir.1998) court the district (holding that the lessons wrote about tion when Sharon instruc- entrapment an given have should “special a man teach- her children from for government’s the in on part tion based lessons, to watch the er” and her desire govern- the improper inducement trial that Sharon conceded at Poehlman as sex of children mentioning ment’s first have [he] came out and said “never sent government the objects). While intro- with the kids.” Poehlman first sex sug- not first messages, it did Poehlman reply in his to the sexual remarks duced pro- children nor gest sexual relations in- message stating Sharon’s government’s Moreover, acts. any sexual pose specific finding “special a man teacher” terest forced never the e-mails government’s for her children. fact, and, in offered respond Poehlman to messages Although Poehlman’s e-mail to end the many opportunities Poehlman his communi- interested a first two weeks of during if he were the communications and not the kids free of sexual appeared Sharon cation with relationship with Sharon children, all uncomfortable. The or if were at directed toward her he allusions implica- roughly that the “clear majority contends for the next communications h-k messages” suggested tion of Sharon’s he acts that months detailed sexual children, but, the children, Poehlman have sex with three even perform with Sharon’s requires ambiguous evidence so long on girls the two older asking put Sharon to made, it is the role of the inferences to be Moreover, just prior to birth control. United inferences. See jury to draw such arrest, a female undercover Poehlman’s (9th Goode, F.2d States v. Sharon, presented Poehl- agent, posing as Cir.1987). magazine pornography man with a child picture depict- pointed particular also have found jury A could reasonable in a sexual act. ing a child When to commit predisposed that Poehlman was he asked Poehlman whether officer rely upon five generally the crime. We ready for (1) the children “will be thought determining predisposition: factors “God, I this,” hope responded, Poehlman reputation; character or the defendant’s that he has Poehlman also remarked (2) so.” suggest- first whether Although (3) girls.” looked at little “always whether the activity; ed the criminal (4) that he meant at trial stated activity; from the profited defendant eighteen, a reason- age re- women over the defendant demonstrated whether jury able could have concluded that he predisposition
revealed a having toward young
sexual relations with children. trial,
At established that
Poehlman first mentioned sex with having and each proposed sexual act from
originated though him. Even this
case is not cut as clear as a case in which a
defendant, example, exemplifies predis-
position by owning library explicit
materials before the commencement of a
sting operation, jury heard enough evi-
dence for it reasonably conclude that predisposition fact had a
commit the crime. majority
As the acknowledges, the dis-
trict court properly jury,1 instructed the
and Poehlman does not contend otherwise.
What we are left with is a case in which followed the in- court’s correct
structions, evidence, considered the
simply rejected the defense. I af-
firm the conviction. America,
UNITED STATES
Plaintiff-Appellee,
v. CAMPOS,
Teresa Maria Defendant-
Appellant.
No. 97-50635.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March
Filed June 1. The district court by followed the Ninth Circuit 2. The defendant was not induced government agents Jury Manuel of Model Instructions commit 6.2.1 (1997) crime. instructing govern- that the person, independent aWhere of and before prove following: ment must contact, predisposed is to com- predisposed 1. The defendant was to com- crime, entrapment mit the it is not if the being mit the crime before contacted government agents merely provide op- an government agents, or portunity to commit the crime. notes design, implant in an innocent a criminal girls for all the decorative belts made commit a disposition mind the person’s to them for Christmas. gifts shipped act, and then induce commission criminal may of the crime so the Government eventually made and Sharon States, Jacobson v. United prosecute.” from him travel to California plans