|U.S. 9th Circuit Court of Appeals
USA v POEHLMAN
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the Central District
Argued and Submitted
Filed June 27, 2000
Before: Betty B. Fletcher, Alex Kozinski and David R. Thompson, Circuit Judges.
Opinion by Judge Kozinski;
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
KOZINSKI, Circuit Judge.
Mark Poehlman, a cross-dresser and foot-fetishist, sought the company
of like-minded adults on the Internet. What he
After graduating from high school, Mark Poehlman joined the Air Force,
where he remained for nearly 17 years. Eventu-
These events left Poehlman lonely and depressed. He began trawling Internet
"alternative lifestyle" discussion groups in
Eventually, Poehlman got a positive reaction from a woman named Sharon.
Poehlman started his correspondence
Sharon responded positively to Poehlman's e-mail. She said she had three
children and was "looking for someone
Poehlman replied by expressing uncertainty as to what Sharon meant by
special man teacher. He noted that he would
Sharon again rebuffed Poehlman's interest in her:"One thing I should
make really clear though, is that there can't be
so happy to finnally learn your name, I am interested in being this
special teasher, but in all honesty I really don't
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.
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 and Sharon eventually made plans for him to travel to California
from his Florida home. After arriving in
Poehlman was arrested and charged with attempted lewd acts with a minor
in violation of California law. He was tried,
 "In their zeal to enforce the law .. . Government agents may not
originate a criminal design, implant in an innocent
 When entrapment is properly raised, the trier of fact must answer
two related questions: First, did government
 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
 "Inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleasure 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," Poehlman 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). Poehlman'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 having 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 interest 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 Poehlman'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 insufficient to convey the idea that she was looking for a sexual mentor for her daughters, Sharon also salted her correspondence with details that clearly carried sexual innuendo. In her second e-mail to Poehlman, she explained that she had "discussed 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 goosebumps 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, Sharon'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, pressured 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 Poehlman 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,
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
Nancy, I'm not interested in marriage
or any type of relationship with my darlings' teacher. My quest as
Id. (Sept. 18, 1995). Poehlman nevertheless continued to seek a familial
relationship with Sharon10 and her daughters,
As Justice Frankfurter noted in his concurrence in Sherman,
Sherman v. United States, 356 U.S. 369, 382 (1958) (Frankfurter,
J., concurring). Whether the police did more than pro-
 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 government upon the defendant or the government's
taking advantage of an alternative, non-criminal type of motive. "
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 availability of sexually explicit materials." Jacobson, 503 U.S. at 552. In doing so, "the Government not only excited petitioner'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 Sorrells, 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 censorship 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 giving the defendant
the idea of committing the crime, coupled
 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' sexual 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 mentored 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, distasteful 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 (intergenerational 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.").
 It is clear, moreover, that Poehlman continued to long for an adult
relationship with Sharon, as well as a father-like
 As the First Circuit noted in a case with very similar facts, "[t]he record is clear that it was the Government's insistence 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 government materially affected the normal balance between risks and rewards from the commission of the crime, and thereby induced Poehlman to commit the offense.
 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 question 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 sexually mentor Sharon's children
at the first opportunity available to him. But if willingness alone were
the test, Jacobson would
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 correspondence 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 predisposition. 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-
 On this score, the record is sparse indeed; it is easier to say
what the record does not contain than what it does. The
 Poehlman does not appear to have responded to her ad because it
mentions children or their special needs. During the
 Poehlman's enthusiastic, protracted and extreme descriptions of the sexual acts he would perform with Sharon'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 evidence 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 conduct had he not been pushed in that direction by the government. 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 intervention from that afterwards.
It is entirely plausible to infer that, as in Jacobson, it was the government's
graduated response--including e-mail correspondence, handwritten letters
from the girls and Sharon, the use of intimate names, a photograph of Poehlman
This is not to say that statements made after the government'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 predisposition. But only those statements that indicate a state of mind untainted by the inducement are relevant to show predisposition. 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
"When the Government's quest for convictions leads to the apprehension
of an otherwise law-abiding citizen who, if left
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
Viewing the evidence in the light most favorable to the government,
we may reverse the jury's verdict only if no reasonable jury could have
concluded that Mark Poehlman was not legally entrapped. See United States
v. Citro, 842 F.2d
Entrapment as a matter of law was not established in this case. Entrapment as a matter of law requires undisputed evidence establishing that the government induced the defendant to commit the crime and that the defendant was not predisposed 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 interest
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 Poehlman 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 communications if he were
interested in a relationship with Sharon and not the kids or if he were
at all uncomfortable.
A reasonable jury could also have found that Poehlman was predisposed
to commit the crime. We generally rely upon five
Poehlman's character and the absence of a profit motive are two factors
that weigh heavily in Poehlman's favor. Poehlman
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 communications for the next roughly 5-1/2 months detailed sexual acts that he would perform with Sharon's three children, even asking Sharon to put the two older girls on birth control. Moreover, just prior to Poehlman's arrest, a female undercover agent, posing as Sharon, presented Poehlman with a child pornography magazine and pointed to a particular picture depicting 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 otherwise. What we are left with
is a case in which the jury followed the court's correct instructions,
considered the evidence, and simply rejected the defense. I would affirm
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.
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 understand." 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
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 anything
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 mistress
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 darlings." 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
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 Gamache, not the
result. Nevertheless we consider our ruling entirely consistent 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
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.
The Regional Task Force on Internet Crimes Against Children
for Northern New England web pages are maintained by the Keene Police