USA v POEHLMAN, 9850631
U.S. 9th Circuit Court of Appeals
USA v POEHLMAN
9850631
UNITED STATES OF AMERICA,
No. 98-50631
Plaintiff-Appellee,
D.C. No.
v.
CR-97-01008-DDP-01
MARK DOUGLAS POEHLMAN,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
December 6, 1999--Pasadena, California
Filed June 27, 2000
Before: Betty B. Fletcher, Alex Kozinski and
David R. Thompson, Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Thompson
_________________________________________________________________
COUNSEL
Edward M. Robinson, Torrance, California, argued the cause
for the defendant-appellant.
Luis Li, Assistant United States Attorney, Los Angeles, Cali-
fornia, argued the cause for theplaintiff-appellee. With him on
the briefs were Alejandro N. Mayorkas and George S. Car-
dona.
_________________________________________________________________
OPINION
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. Eventu-
ally, 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 dis-
charge.
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 indi-
cated 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 97-1008-
SWK, Thurs., May 21, 1998 at 26 (Testimony of Mark Poehl-
man).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
_________________________________________________________________
5 Hi Sharon,
so happy to finnally learn your name, I am interested in being this
special teasher, but in all honesty I really don't know exactly
what you expect me to teach them other than proper morals and
give support to them where it is needed.
Can I ask how old your sweethearts are and if you don't mind
telling me what kind of teachings do you expect me to give them?
But I will tell you that I am interested in their mom too, you
would be part of the picture with them right? this is why I tell you
all about myself and what I like, cause I ahve to be honest and
tell you I would hope you would support and enjoy me sexually
as well as in company and hopefully love and the sexual relations
that go with it.
Hope you are well and your sweethearts are well too, I truly hope
to hear from you and hopefully some more information about
what you are looking for. . till then Have a very nice day.
Mark
Appellant's Excerpts of Record at Tab 5 (Aug. 2, 1995).
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 writ-
ten notes from one of her children. Poehlman made decorative
belts for all the girls and shipped the gifts to them for Christ-
mas.
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 maga-
zines 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 Poehl-
man to the adjoining room, where he was to meet the chil-
dren, presumably to give them their first lesson under their
mother's protective supervision. Upon entering the room
however, Poehlman was greeted by Naval Criminal Investiga-
tion 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 engag-
ing in sex acts with a minor in violation of 18 U.S.C.
S 2423(b). He was sentenced to 121 months. Poehlman chal-
lenges 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
[1] "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.
[2] 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, sec-
ond, was the defendant predisposed? We discuss inducement
at greater length below, see page 6885 infra, but at bottom the
government induces a crime when it creates a special incen-
tive 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 com-
mit the offense, so as to increase the likelihood that he will
engage in the particular criminal conduct. Even if the govern-
ment induces the crime, however, defendant can still be con-
victed 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 will-
ingness 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; con-
versely, if the government must work hard to induce a defen-
dant to commit the offense, it is far less likely that he was
predisposed. See Hollingsworth, 27 F.3d at 1200.
[3] To raise entrapment, defendant need only point to evi-
dence from which a rational jury could find that he was
induced to commit the crime but was not otherwise predis-
posed 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 gov-
ernment's witnesses. The burden then shifts to the govern-
ment 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 con-
victed 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 per-
suade 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 predispo-
sition. See United States v. Thickstun , 110 F.3d 1394, 1396
(9th Cir. 1997).
Inducement
[4] "Inducement can be any government conduct creating
a substantial risk that an otherwise law-abiding citizen would
commit an offense, including persuasion, fraudulent represen-
tations, threats, coercive tactics, harassment, promises of
reward, or pleas based on need, sympathy or friendship."
United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994).
Poehlman argues that he was induced by government agents
who used friendship, sympathy and psychological pressure to
"beguile[ ] him into committing crimes which he otherwise
would not have attempted." Sherman v. United States, 356
U.S. 369, 376 (1958).
According to Poehlman, before he started corresponding
with Sharon, he was harmlessly cruising the Internet looking
for an adult relationship; the idea of sex with children had not
entered his mind. When he answered Sharon's ad, he clearly
expressed an interest in "a long-term relationship leading to
marriage." Testimony of Mark Poehlman, page 6879 supra, at
26. His only reference to children was that he "didn't mind"
them. Id. Even after Sharon gave him an opening by hinting
about "not let[ting] society's views stand in the way," Poehl-
man continued to focus his sexual attentions on the mother
and not the daughters: "[I]f you don't mind me wearing your
hose and licking your toes then I am open for anything."
Appellant's Excerpts of Record at Tab 5 (July 31, 1995).
It was Sharon who first suggested that Poehlman develop
a relationship with her daughters: "I've had to be both mother
and father to my sweethearts, but there are some things I'm
just not equipped to teach them. I'm looking for someone to
help with their special education." Id. (July 27, 1995). Poehl-
man's response to this ambiguous invitation was perfectly
appropriate: "[A]s far as your children are concerned I will
treat them as my own (as I would treat my boys if I had them
with me) I have huge family values and like kids and they
seem to like me alright too." Id. (July 31, 1995). Even when
Sharon, in her next e-mail, became more insistent about hav-
ing Poehlman be a special man teacher to her daughters, he
betrayed no interest in a sexual relationship with them: "I am
interested in being this special teasher, but in all honesty I
really don't know exactly what you expect me to teach them
other than proper morals and give support to them where it is
needed." Id. (Aug. 2, 1995).
In the same e-mail, Poehlman expressed a continued inter-
est in an adult relationship with Sharon: "I ahve to be honest
and tell you I would hope you would support and enjoy me
sexually as well as in company and hopefully love and the
sexual relations that go with it." Id. It was only after Sharon
made it clear that agreeing to serve as sexual mentor to her
daughters was a condition to any further communications
between her and Poehlman that he agreed to play the role
Sharon had in mind for him.
The government argues that it did not induce Poehlman
because Sharon did not, in so many words, suggest he have
sex with her daughters. But this is far too narrow a view of
the matter. The clear implication of Sharon's messages is that
this is precisely what she had in mind. Contributing to this
impression is repeated use of the phrases "special teacher"
and "man teacher," and her categorical rejection of Poehl-
man's suggestion that he would treat her daughters as his own
children and teach them proper morals with a curt,"I don't
think you understand." Id. (Aug. 2, 1995).
In case the references to a special man teacher were insuffi-
cient to convey the idea that she was looking for a sexual
mentor for her daughters, Sharon also salted her correspon-
dence with details that clearly carried sexual innuendo. In her
second e-mail to Poehlman, she explained that she had "dis-
cussed finding a special man teacher with my sweethearts and
you should see the look of joy and excitement on their faces.
They are very excited about the prospect of finding such a
teacher." Id. (Aug. 1, 1995). To round out the point, Sharon
further explained that "I want my sweethearts to have the
same special memories I have . . . . I've told them about my
special teacher and the memories I have. I still get goose-
bumps thinking about it." Id. From Sharon's account, one
does not get the impression that her own special teacher had
given her lessons in basket weaving or croquet. Finally, Shar-
on's third e-mail to Poehlman clearly adds to the suggestion
of a sexual encounter between him and her daughters when
she states: "I do like to watch, though. I hope you don't think
I'm too weird." Id. In light of Sharon's earlier statements, it's
hard to escape the voyeuristic implications of this statement.
After all, there would be nothing weird about having Sharon
watch Poehlman engaged in normal father-daughter activities.
Sharon did not merely invite Poehlman to have a sexual
relationship with her minor daughters, she made it a condition
of her own continued interest in him.8 Sharon, moreover, pres-
sured Poehlman to be explicit about his plans for teaching the
girls: "Tell me more about how their first lesson will go. This
will help me make my decision as to who their teacher will
be." Id. (Sept. 19, 1995). The implication is that unless Poehl-
man came up with lesson plans that were sufficiently creative,
Sharon would discard Poehlman and select a different mentor
for her daughters.
Sharon eventually drew Poehlman into a protracted e-mail
exchange which became increasingly intimate and sexually
explicit. Approximately three weeks into the correspondence,
Poehlman started signing off as Nancy, the name he adopts
when dressing in women's clothes. Sharon promptly started
using that name, offering an important symbol of acceptance
and friendship. In the same e-mail, Sharon complained that
Poehlman had neglected to discuss the education of her two
younger girls. "I thought it curious that you did not mention
Bonnie or Karen. Are they too young to start their educations?
I don't want them to feel left out, but at the same time If you
aren't comfortable with them please say so." Id. (Aug. 30,
1995).
Sharon also pushed Poehlman to be more explicit about his
plans for the oldest daughter: "Abby is very curious (but
excited) about what you expect her to do and I haven't been
able to answer all her questions. Hope to hear from you
soon." Id. Poehlman responded to Sharon's goading: "Bonnie
and Karen being younger need to learn how to please, before
they can be taught how to be pleased. they will start be
exploring each others body together as well as mine and
yours, they will learn how to please both men and women and
they will be pleasein Abby as well." Id. (Aug. 31, 1995).
Over six months and scores of e-mails, Sharon persistently
urged Poehlman to articulate his fantasies concerning the girls.9
Meanwhile Poehlman continued his efforts to establish a rela-
tionship with Sharon. For example, Poehlman twice proposed
marriage, but this drew a sharp rebuke from Sharon:
Nancy, I'm not interested in marriage or any type of
relationship with my darlings' teacher. My quest as
their mother is to find them the right teacher so that
they get the same education I was fortunate enough
to get at their ages. You need to understand this. This
is not for me, but for them. I don't mean to sound
harsh, but you can't imagine the number of people
just looking for a wife or girlfriend online. I have to
look past all this and concentrate on finding my dar-
lings' special man teacher.
Id. (Sept. 18, 1995). Poehlman nevertheless continued to seek
a familial relationship with Sharon10 and her daughters,
expressing himself ready to quit his job and move across the
country to be with them.
As Justice Frankfurter noted in his concurrence in Sher-
man,
Of course in every case of this kind the intention that
the particular crime be committed originates with the
police, and without their inducement the crime
would not have occurred. But it is perfectly clear
[that] . . . where the police in effect simply furnished
the opportunity for the commission of the crime, that
this is not enough to enable the defendant to escape
conviction.
Sherman v. United States, 356 U.S. 369, 382 (1958) (Frank-
furter, J., concurring). Whether the police did more than pro-
vide an opportunity--whether they actually induced the
crime, as that term is used in our entrapment jurisprudence--
depends on whether they employed some form of suasion that
materially affected what Justice Frankfurter called the "self-
struggle [to] resist ordinary temptations. " Id. at 384 (Frank-
furter, J., concurring).
[5] Where government agents merely make themselves
available to participate in a criminal transaction, such as
standing ready to buy or sell illegal drugs, they do not induce
commission of the crime. "An improper `inducement' . . .
goes beyond providing an ordinary `opportunity to commit a
crime.' An `inducement' consists of an `opportunity' plus
something else--typically, excessive pressure by the govern-
ment upon the defendant or the government's taking advan-
tage of an alternative, non-criminal type of motive. " United
States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994) (quoting
Jacobson, 503 U.S. at 550).
In Jacobson, the government conceded inducement based
on the fact that the defendant there committed the offense
after numerous contacts from the government spanning over
two years, during the course of which government agents
"wav[ed] the banner of individual rights and disparag[ed] the
legitimacy and constitutionality of efforts to restrict the avail-
ability of sexually explicit materials." Jacobson, 503 U.S. at
552. In doing so, "the Government not only excited petition-
er's interest in sexually explicit materials banned by law but
also exerted substantial pressure on petitioner to obtain and
read such material as part of a fight against censorship and
infringement of individual rights." Id. Jacobson is consistent
with prior cases such as Sherman, where the government
played upon defendant's weakness as a drug user, and Sor-
rells, where the government agent called upon defendant's
loyalty to a fellow war veteran to induce him to commit the
offense.
Cases like Jacobson, Sherman and Sorrells demonstrate
that even very subtle governmental pressure, if skillfully
applied, can amount to inducement. In Jacobson , for example,
the government merely advanced the view that the law in
question was illegitimate and that, by ordering the prohibited
materials, defendant would be joining in "a fight against cen-
sorship and the infringement of individual rights. " Id. at 552.
In Sorrells, the inducement consisted of repeated requests,
made in an atmosphere of comradery among veterans. See
Sorrells, 287 U.S. at 439-41. In Sherman, the inducement
consisted of establishing a friendly relationship with the
defendant, and then playing on his sympathy for the supposed
suffering of a fellow drug user. See Sherman, 356 U.S. at 371.
In Hollingsworth, the inducement was nothing more than giv-
ing the defendant the idea of committing the crime, coupled
with the means to do it. See Hollingsworth, 27 F.3d at 1200-
02.
[6] Measured against these precedents, there is no doubt
that the government induced Poehlman to commit the crime
here. Had Sharon merely responded enthusiastically to a hint
from Poehlman that he wanted to serve as her daughters' sex-
ual mentor, there certainly would have been no inducement.
But Sharon did much more. Throughout the correspondence
with Poehlman, Sharon made it clear that she had made a firm
decision about her children's sexual education, and that she
believed that having Poehlman serve as their sexual mentor
would be in their best interest. She made repeated references
to her own sexual mentor, explaining that he could have men-
tored her daughters, had he not died in a car crash in 1985.
See Appellant's Excerpts of Record at Tab 5 (Oct. 30, 1995).
While parental consent is not a defense to statutory rape, it
nevertheless can have an effect on the "self-struggle [to] resist
ordinary temptations." Sherman, 356 U.S. at 384 (Frankfurter,
J., concurring). This is particularly so where the parent does
not merely consent but casts the activity as an act of parental
responsibility and the selection of a sexual mentor as an
expression of friendship and confidence. Not only did this
diminish the risk of detection, it also allayed fears defendant
might have had that the activities would be harmful, distaste-
ful or inappropriate, particularly since Sharon claimed to have
herself benefitted from such experiences. See United States v.
Gamache, 156 F.3d 1, 11 (1st Cir. 1998) ("[T]he government
agent provided justifications for the illicit activity (intergen-
erational sex) by describing `herself' as glad that Gamache
was `liberal' like her, expressing that she, as the mother of the
children, strongly approved of the illegal activity, and
explaining that she had engaged in this conduct as a child and
found it beneficial to her.").
[7] It is clear, moreover, that Poehlman continued to long
for an adult relationship with Sharon, as well as a father-like
relationship with the girls. He offered marriage; talked about
quitting his job and moving to California; discussed traveling
with Sharon and the girls; even offered his military health
insurance benefits as an inducement. While refusing to give
Poehlman hope of a sexual relationship with her, Sharon
encouraged these fantasies; she went so far as to check out
Poehlman's job prospects in California.11 The government
thus played on Poehlman's obvious need for an adult relation-
ship, for acceptance of his sexual proclivities and for a family,
to draw him ever deeper into a sexual fantasy world involving
these imaginary girls.
[8] As the First Circuit noted in a case with very similar
facts, "[t]he record is clear that it was the Government's insis-
tence and artful manipulation of appellant that finally drew
him into the web skillfully spun by the detective. " Gamache,
156 F.3d at 10.12 Through its aggressive intervention, the gov-
ernment materially affected the normal balance between risks
and rewards from the commission of the crime, and thereby
induced Poehlman to commit the offense.
Predisposition
[9] The jury could, nevertheless, have found Poehlman
guilty if it found that he was predisposed to commit the
offense. Quite obviously, by the time a defendant actually
commits the crime, he will have become disposed to do so.
However, the relevant time frame for assessing a defendant's
disposition comes before he has any contact with government
agents, which is doubtless why its called pre disposition. See
Jacobson, 503 U.S. at 549 (" `[T]he prosecution must prove
beyond [a] reasonable doubt that the defendant was disposed
to commit the criminal act prior to first being approached by
Government agents.' ") (quoting United States v. Whoie, 925
F.2d 1481, 1483-84 (D.C. Cir. 1991)). In our case, the ques-
tion is whether there is evidence to support a finding that
Poehlman was disposed to have sex with minors prior to
opening his correspondence with Sharon.
The government argues that Poehlman was predisposed
because he jumped at the chance to cross state lines to sexu-
ally mentor Sharon's children at the first opportunity available
to him. But if willingness alone were the test, Jacobson would
have come out differently. The defendant there had been con-
tacted by government agents posing as organizations espous-
ing the view that child pornography should be made legal, and
asked a variety of questions about his interest in young boys.
Jacobson expressed such an interest and, in response to "sur-
veys," expressed the view that such materials should be made
legal. The correspondence lasted two years, at the end of
which the government (posing as one of these organizations)
offered to sell him some magazines containing pictures of
nude boys. Jacobson immediately placed an order and was
arrested after the materials were delivered. As the Seventh
Circuit noted in Hollingsworth, Jacobson "never resisted" the
government's offer. Hollingsworth, 27 F.3d at 1199.
Despite Jacobson's willingness to commit the offense at the
first opportunity offered to him, the Supreme Court held that
the government had failed to show predisposition because it
had failed to show that he would have been disposed to buy
the materials before the government started its correspon-
dence with him. The fact that he was willing to order illegal
materials after he'd been harangued by the government for
over two years was not deemed sufficient to show predisposi-
tion. Jacobson's decision to order, the Court reasoned, could
have been a consequence of the government's inducement.
By analogy, the fact that Poehlman willingly crossed state
lines to have sex with minors after his prolonged and steamy
correspondence with Sharon cannot, alone, support a finding
of predisposition. It is possible, after all, that it was the gov-
ernment's inducement that brought Poehlman to the point
where he became willing to break the law. As in Jacobson,
we must consider what evidence there is as to Poehlman's
state of mind prior to his contact with Sharon.
[10] On this score, the record is sparse indeed; it is easier
to say what the record does not contain than what it does. The
government produced no e-mails or chat room postings where
Poehlman expressed an interest in sex with children, or even
the view that sex with children should be legalized. Nor did
the government produce any notes, tapes, magazines, photo-
graphs, letters or similar items which disclosed an interest in
sex with children, despite a thorough search of Poehlman's
home. There was no testimony from the playmates of Poehl-
man's children, his ex-wife or anyone else indicating that
Poehlman had behaved inappropriately toward children or
otherwise manifested a sexual interest in them. Sharon's ad,
to which Poehlman responded, does not clearly suggest that
sex with children was to be the object of the relationship: "Di-
vorced mother of 3 looking for someone who understands my
family's unique needs. Servicemen preferred. Please E-mail
me at Darlings3@aol.com." Appellant's Excerpts of Record
at Tab 5 (undated). While one might presume that one or
more of the children are minors, the phrase "unique needs"
could, just as easily, connote children with physical disabili-
ties, or merely the plight of a single mother of three.
[11] Poehlman does not appear to have responded to her ad
because it mentions children or their special needs. During the
crucial first few exchanges, see page 6879-82 supra, when
Sharon focused Poehlman's attention on those special needs,
he expressed confusion as to what she had in mind. Instead of
exploiting the ambiguity in Sharon's messages to suggest the
possibility of sex with her daughters, Poehlman pushed the
conversation in the opposite direction, offering to act as a
father figure to the girls and teach them "proper morals."
Appellant's Excerpts of Record at Tab 5 (Aug. 2, 1995).
While Poehlman's reluctance might have been borne of
caution--the way a drug dealer might demur when he is
unsure whether a prospective buyer is a government agent--
the fact remains that Poehlman's earliest messages (which
would be most indicative of his pre-existing state of mind)
provide no support for the government's case on predisposi-
tion. To the contrary, Poehlman's reluctance forced Sharon to
become more aggressive in her suggestions, augmenting the
defendant's case for inducement. See page 6885-86 supra.
[12] Poehlman's enthusiastic, protracted and extreme
descriptions of the sexual acts he would perform with Shar-
on's daughters are, according to the government, its strongest
evidence of Poehlman's predisposition. Indeed, once he got
the idea of what Sharon had in mind, Poehlman expressed few
concerns about the morality, legality or appropriateness of
serving as the girls' sexual mentor. But Poehlman was not
convicted of writing smutty e-mails; he was convicted of
crossing state lines, some six months later, to have sex with
minors. The problem with using Poehlman's e-mails as evi-
dence of predisposition is that they were all in response to
specific, pointed suggestions by Sharon. The e-mails thus tell
us what Poehlman's disposition was once the government had
implanted in his mind the idea of sex with Sharon's children,
but not whether Poehlman would have engaged in such con-
duct had he not been pushed in that direction by the govern-
ment. In short, Poehlman's erotic e-mails cannot provide
proof of predisposition because nothing he says in them helps
differentiate his state of mind prior to the government's inter-
vention from that afterwards.
It is entirely plausible to infer that, as in Jacobson, it was
the government's graduated response--including e-mail cor-
respondence, handwritten letters from the girls and Sharon,
the use of intimate names, a photograph of Poehlman sent to
Sharon, Poehlman handcrafting gifts for the girls and Shar-
on's willingness to help Poehlman look for a job in Southern
California--that brought Poehlman to the point where he was
willing to cross state lines for the purpose of having sex with
the three young girls. Since the government has the burden of
proof as to the lack of predisposition, materials like these e-
mails, which do not demonstrate any preexisting propensity to
engage in the criminal conduct at issue, simply cannot carry
that burden.
This is not to say that statements made after the govern-
ment's inducement can never be evidence of predisposition.
If, after the government begins inducing a defendant, he
makes it clear that he would have committed the offense even
without the inducement, that would be evidence of predisposi-
tion. But only those statements that indicate a state of mind
untainted by the inducement are relevant to show predisposi-
tion. Poehlman's protracted correspondence with Sharon, in
fact, undermines the view that he was predisposed to commit
the offense. Even as his e-mails became more intimate and
explicit--usually in response to Sharon's constant hectoring
for more details about Poehlman's lesson plans--he never
gave any indication that being a sexual mentor to the girls in
any way fulfilled his preexisting fantasies. To the contrary,
Poehlman repeatedly tried to integrate Sharon's expectations
of him into his own fantasies by insisting that the girls (and
Sharon) parade around the house in nylons and high-heeled
pumps ("as high of a heel as they can handle, " Appellant's
Excerpts of Record at Tab 5 (Nov. 7, 1995))--as Poehlman
himself apparently does.
The only indication in the record of any preexisting interest
in children is Poehlman's statement in the hotel room that he
has "always looked at little girls." Testimony of Mark Poehl-
man, page 6879 supra, at 104. But this is hardly an indication
that he was prone to engage in sexual relations with minors.
See Jacobson, 503 U.S. at 545 (while defendant expressed
interest in "good looking young guys (in their late teens and
early 20's) doing their thing together," the Court noted that he
"made no reference to child pornography"); see also Hollings-
worth, 27 F.3d at 1202 ("Whatever it takes to become an
international money launderer, they did not have it."). Having
carefully combed the record for any evidence that Poehlman
was predisposed to commit the offense of which he was con-
victed, we find none. To the extent the jury might have found
that Poehlman was predisposed to commit the offense, that
finding cannot be sustained.
Conclusion
"When the Government's quest for convictions leads to the
apprehension of an otherwise law-abiding citizen who, if left
to his own devices, likely would have never run afoul of the
law, the courts should intervene." Jacobson , 503 U.S. at 553-
54. So far as this record discloses, Poehlman is such a citizen.
Prior to his unfortunate encounter with Sharon, he was on a
quest for an adult relationship with a woman who would
understand and accept his proclivities, which did not include
sex with children. There is surely enough real crime in our
society that it is unnecessary for our law enforcement officials
to spend months luring an obviously lonely and confused
individual to cross the line between fantasy and criminality.
The judgment of conviction is REVERSED on grounds of
insufficiency of the evidence and the case is REMANDED
with instructions that defendant be released forthwith.
The mandate shall issue at once. Fed. R. App. P. 2.
_________________________________________________________________
THOMPSON, Circuit Judge, dissenting:
I respectfully dissent. Our task as an appellate court is not
to reweigh the evidence but to uphold the jury's verdict so
long as substantial evidence supports it. The fact that we
would have decided the case differently is irrelevant.
Viewing the evidence in the light most favorable to the
government, we may reverse the jury's verdict only if no rea-
sonable jury could have concluded that Mark Poehlman was
not legally entrapped. See United States v. Citro, 842 F.2d
1149, 1151 (9th Cir. 1988). Because there was sufficient evi-
dence for a reasonable jury to find that the government did
not induce Poehlman to commit the crime, the jury's verdict
should be upheld.
Entrapment as a matter of law was not established in this
case. Entrapment as a matter of law requires undisputed evi-
dence establishing that the government induced the defendant
to commit the crime and that the defendant was not predis-
posed to commit the crime. See United States v. Lorenzo, 43
F.3d 1303, 1305 (9th Cir. 1995).
Poehlman failed to present " `undisputed evidence making
it patently clear that an otherwise innocent person was
induced to commit the illegal act.' " United States v. Skarie,
971 F.2d 317, 320 (9th Cir. 1992) (citation omitted); see
United States v. Manarite, 44 F.3d 1407, 1418 (9th Cir. 1995)
(defining inducement as "government conduct that creates a
substantial risk that an otherwise law-abiding person will
commit a crime"). Even though during the first two weeks of
Poehlman's e-mail communications with the government
agent posing as "Sharon" Poehlman revealed no sexual inter-
est in children, Poehlman soon began to interpret purposely
vague e-mails from Sharon as containing sexual undertones.
But cf. United States v. Gamache, 156 F.3d 1, 4 (1st Cir.
1998) (holding that the district court should have given an
entrapment instruction based in part on the government's
improper inducement and the government's first mentioning
of children as sex objects). While the government sent Poehl-
man messages, it did not first suggest sexual relations with
children nor propose any specific sexual acts. Moreover, the
government's e-mails never forced Poehlman to respond and,
in fact, offered Poehlman many opportunities to end the com-
munications if he were interested in a relationship with
Sharon and not the kids or if he were at all uncomfortable.
The majority contends that the "clear implication of Sharon's
messages" suggested that Poehlman have sex with the chil-
dren, but, so long as ambiguous evidence requires inferences
to be made, it is the role of the jury to draw such inferences.
See United States v. Goode, 814 F.2d 1353, 1355 (9th Cir.
1987).
A reasonable jury could also have found that Poehlman was
predisposed to commit the crime. We generally rely upon five
factors in determining predisposition: (1) the defendant's
character or reputation; (2) whether the government first sug-
gested the criminal activity; (3) whether the defendant prof-
ited from the activity; (4) whether the defendant demonstrated
reluctance; and (5) the nature of the government's induce-
ment. See Citro, 842 F.2d at 1152. The defendant's reluctance
generally receives the greatest weight. See United States v.
Thickstun, 110 F.3d 1394, 1397 (9th Cir. 1997).
Poehlman's character and the absence of a profit motive are
two factors that weigh heavily in Poehlman's favor. Poehlman
does not have a history of a sexual interest in children, and his
e-mail communications with Sharon never revealed an inter-
est in profiting from any sexual relationship. The other predis-
position factors, however, tip in favor of the government.
During the undercover operation, the government constructed
purposely vague e-mail messages. While Poehlman claims
that the government initiated the sexual conversation when
Sharon wrote about the lessons for her children from a "spe-
cial man teacher" and her desire to watch the lessons, Poehl-
man conceded at trial that Sharon "never came out and said
that [he] have sex with the kids." Poehlman first introduced
sexual remarks in his reply to the government's message stat-
ing Sharon's interest in finding a "special man teacher" for
her children.
Although Poehlman's e-mail messages during the first two
weeks of his communication with Sharon appeared free of
sexual allusions directed toward her children, his communica-
tions for the next roughly 5-1/2 months detailed sexual acts
that he would perform with Sharon's three children, even ask-
ing Sharon to put the two older girls on birth control. More-
over, just prior to Poehlman's arrest, a female undercover
agent, posing as Sharon, presented Poehlman with a child por-
nography magazine and pointed to a particular picture depict-
ing a child in a sexual act. When the officer asked Poehlman
whether he thought the children "will be ready for this,"
Poehlman responded, "God, I hope so." Poehlman also
remarked that he has "always looked at little girls." Although
Poehlman at trial stated that he meant women over the age of
eighteen, a reasonable jury could have concluded that he
revealed a predisposition toward having sexual relations with
young children.
At trial, the government established that Poehlman first
mentioned having sex with the children, and each proposed
sexual act originated from him. Even though this case is not
as clear cut as a case in which a defendant, for example,
exemplifies predisposition by owning a library of explicit
materials before the commencement of a sting operation, the
jury heard enough evidence for it to reasonably conclude that
Poehlman in fact had a predisposition to commit the crime.
As the majority acknowledges, the district court properly
instructed the jury,1 and Poehlman does not contend other-
wise. What we are left with is a case in which the jury fol-
lowed the court's correct instructions, considered the
evidence, and simply rejected the defense. I would affirm the
conviction.
_______________________________________________________________
FOOTNOTES
1 The government was unable to produce the text of the original e-mail
at trial, but Poehlman offered undisputed testimony as to its substance.
2 Much of the evidence in this case is in the form of e-mail messages
sent back and forth between Sharon and Poehlman. In the breezy, informal
style of e-mail, there are numerous grammatical, spelling and syntax errors
in the messages. Because indicating each mistake with a [sic] would be
too distracting, and correcting all of the errors poses the risk of altering
the meaning of the messages, we reproduce the messages in their original
form, warts and all.
3 Thanks for answering my posting. I got a lot of responses, but for
some reason yours caught my eye.
I'll tell you a little about myself. I'm 30, divorced and have 3
children. We are a very close family. I'm looking for someone
who understands us and does not let society's views stand in the
way. I've had to be both mother and father to my sweethearts, but there are some things I'm just not equipped to teach them. I'm
looking for someone to help with their special education.
If you have an interest, I'd love to hear your ideas, desires and
experiences. If this doesn't interest you, I understand.
Appellant's Excerpts of Record at Tab 5 (July 27, 1995).
4 Hi There, talk about a pleasant surprise to see a answer from you,
I too am divorced and have two boys not living with me they are
9 and 6. they live with their mother in upper NY I don't get to
see them very often matter of fact its been almost two years since
last I saw them, I am planning a trip to see them now.
I am retired Air Force after 16.8 years I took the early retirement,
decided it was time to get out and work for a living again. . (g)
I am extremely honest and straight forward type of guy I don't
play head games and don't like to have them played against me.
I tell you straight out and open that I am a in house tv, meaning
I rather enjoy wearing hose and heels inside the house, not
around small children of course but when mine are old enough
to understand I will tell them that and the big foot fetish I have
are about my only two major problems that need a open minded
easy going woman, so as they say in the movies if you don't
mind me wearing your hose and licking your toes then I am open
for anything . . (g) , , I also have a sense of humor. as far as your
children are concerned I will treat them as my own (as I would
treat my boys if I had them with me) I have huge family values
and like kids and they seem to like me alright too. well now you
know all about me, if you are still interested then please write
back, if not and I would understand why you didn't then I wish
you all the best in finding the person you are looking for. if you
wish to call my number is 904-581-5442, I am not home a lot due
to work and school but there is an answering machine that only
I listen to, ( I you didn't th live alone) have a nice day.
Mark
Appellant's Excerpt of Record at Tab 5 (July 31, 1995).
6 I am very open minded and willing to teach them everything you
wish taught.
If they are all girls then I would help them to learn how to protect
themselves by taking control over men I can be very submissive
to the right women, though they will learn the right way to dress
least in the house, you would be expected to dress as them also
and prove to be a good example for them or face punishment.
Appellant's Excerpts of Record at Tab 5 at (Aug. 3, 1995).
7 Without a special verdict, we don't know which is the case. Because
the determination of whether a defendant is entrapped is often confusing
and difficult, we encourage district courts to use special verdict forms that
query jurors as to the elements of the entrapment defense. Not only does
this ease the process of appellate review, it encourages juries to focus their
deliberations on the elements of the defense.
8 Sharon repeatedly held her own relationship with Poehlman hostage to
his fulfilling the role of special man teacher."I'm looking for someone to
help with their special education. . . . If this doesn't interest you, I under-
stand." Appellant's Excerpts of Record at Tab 5 (July 27, 1995). "If you
understand and are interested, please write back. If you don't share my
views I understand." Id. (Aug. 1, 1995)."I'd love to hear your ideas on
lessons . . . . If you are still interested I'm looking forward to your next
letter." Id. (Aug. 9, 1995). "If this is ok to you, please tell me so. If not,
I wish you well and I'll continue my search." Id. (Sept. 18, 1995). "[I]f
being their teacher is something you don't want to do[,] I will try to find
another person like you to be their teacher." Id. (Dec. 13, 1995). Anytime
Poehlman strays from the discussion of the daughters into a discussion of
himself and Sharon, she refocuses him on the children. "[Y]our statement
about wanting to be `your friend and lover' . . . was this directed at me
or the girls? If it was to the girls, that's fine, but not for me. I hate to keep
making a thing about this but I just want you to know that there will be
nothing sexual between us." Id. (Nov. 10, 1995).
9 "I'd love to hear your ideas, desires and experiences." Appellant's
Excerpts of Record at Tab 5 (July 27, 1995). "The best way for me tojudge who I'm going to choose to be their teacher is to see what he would
have in mind for a first lesson. I promise not to get mad or upset at any-
thing written." Id. (Aug. 2, 1995). "I'd love to hear your ideas on lessons
. . . ." Id. (Aug. 9, 1995). "Abby is interested in what exactly what a mis-
tress is and what one does. I started to explain it to her but I thought it
would mean more to her if you told her in your own words." Id. (Aug. 30,
1995). "Write back and let me know what you have in mind for the dar-
lings." Id. (Sept. 7, 1995). "Tell me more about how their first lesson will
go. This will help me make my decision as to who their teacher will be."
Id. (Sept. 19, 1995). "I'd like to know a little bit more about what your
lessons would consist of. That would answer a lot of questions for me and
the girls." Id. (Nov. 2, 1995).
10 Poehlman goes so far as to anticipate Sharon's rebuff of his advances.
"I already know part of your answer . . . no nancy I have told you many
times never to expect us to get together meaning me and you . . . RIGHT
. . grin . . I gotta have dreams ya know . . but I still know the answeres
to things I write though I write them anyway." Appellant's Excerpts of
Record at Tab 5 (Jan. 18, 1996).
11 "I'll go by the cable TV place today and see if they're hiring and send
you an application. I did find out that Disneyland is not hiring now (it's
the off season) but might hire again in the spring time." Appellant's
Excerpts of Record at Tab 5 (Jan. 18, 1996).
12 In Gamache the issue was whether defendant was entitled to an
entrapment instruction, not whether he was entrapped as a matter of law.
See Gamache, 156 F.3d at 12. We therefore rely on the reasoning of Gam-
ache, not the result. Nevertheless we consider our ruling entirely consis-
tent with Gamache. The defendant there did not, apparently, argue
entrapment as a matter of law, perhaps because some of the evidence was
in dispute. In our case, the evidence is mostly documentary, and the facts
are, essentially, agreed upon.
1 The district court followed the Ninth Circuit Manuel of Model Jury
Instructions 6.2.1 (1997) in instructing the jury that the government must
prove the following:
1. The defendant was predisposed to commit the crime before
being contacted by government agents, or
2. The defendant was not induced by the government agents to
commit the crime.
Where a person, independent of and before government contact,
is predisposed to commit the crime, it is not entrapment if the
government agents merely provide an opportunity to commit the
crime.