JAMES MITCHELL, PETITIONER V. UNITED STATES OF AMERICA No. 90-6738 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-12) is reported at 915 F.2d 521. JURISDICTION The judgment of the court of appeals was entered on October 1, 1990. The petition for a writ of certiorari was filed on January 2, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the government's undercover child pornography investigation violated the Due Process Clause. STATEMENT In the United States District Court for the Central District of California, petitioner entered a conditional guilty plea to receiving material depicting minors engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2). The district court ordered a suspended sentence and placed petitioner on three years' probation. The court of appeals affirmed. 1. In May 1983, the United States Postal Inspection Service (Inspection Service) seized records from one of the largest commercial child pornographers in the United States. Those records showed that petitioner had ordered items from that pornographer's catalog, including "Skoleborn School Children," an illicit Swedish magazine containing sexually explicit pictures of children. Pet. App. 8; Gov't C.A. Br. 4. In January 1987, because of petitioner's past purchase of child pornography, the Inspection Service targeted petitioner in its undercover operation "Project Looking Glass," sending him a four-page application for membership in "Love Land." The application described Love Land as: a society for those who adhere to the doctrine that pleasure and happiness is the sole good in life. We believe that we have the right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without the restrictions being placed upon us by an outdated puritan morality. Members of Love Land were represented as entitled to receive its newsletter and to correspond and to meet with other members. No other organizational activities were mentioned. Pet. App. 4. The application had ten parts. Several of the parts required applicants to express their attitudes toward certain sexual and non-sexual activities. Part D required applicants to indicate whether they were in favor of, undecided about, or opposed to, a variety of sexual activities, including "heterosexual(ity)," "homosexual(ity)," and "pedophilia." Pet. App. 5, 15. Part E required applicants to indicate the degree of enjoyment they received from 15 types of sexually oriented materials including those presenting "pinups," "swingers" clubs, heterosexual activity, homosexual activity, and "pre-teen sex." Pet. App. 5, 15. Part F asked applicants to reveal their attitudes about sexually explicit materials, sexual freedom in all activities, and sexual freedom for all consenting persons without any age restrictions. Part G asked applicants to indicate whether they enjoyed hobbies such as painting, music, and photography. Part H asked applicants to indicate their age at the time of their first sexual experience and to indicate what they considered to be the best age for a first sexual experience. Finally, the application said, in capital letters, "I understand that the information which I have produced shall be held in strict confidence by the society and that all information received by me from the society shall be held in strict confidence by me." In January 1987, petitioner completed and returned the questionnaire to Love Land, claiming an interest in "family love" and "pre-teen sex materials." Pet. App. 4-5; Gov't C.A. Br. 5. The answers to the Love Land questionnaire were used in part to determine who would receive a solicitation from another undercover government organization, "The Far Eastern Trading Company." Pet. App. 5. In March 1987, petitioner received a solicitation letter from "Far Eastern Trading Company, Ltd." of Hong Kong. The letter stated: "We have read the comments of Mr. Van Rabb of your Customs Service concerning the efforts of his agents to find 'children's pornography' and we find that many of you are denied a product because of that agency." The letter continued: "For those of you who have enjoyed youthful material from (certain publishers), we have devised a method of getting these to you without prying eyes of United States Customs seizing your mail." The letter then explained that Far Eastern's "American solicitors" had advised that it could achieve this result by mailing the material from Far Eastern's branch office in the Virgin Islands. The letter concluded, "If you want further information, please complete the following coupon and disclaimer and post it to the listed addresses." Petitioner returned this request for more information on March 30, 1987. Pet. App. 5. In early May 1987, petitioner received a catalog from Far Eastern. The catalog offered a selection of seven video tapes, two 8mm films, and seven magazines. One offering, entitled "Torrid Tots," was described as picturing "(v)ery young girls, some as young as five-years-old, in all kinds of seductive poses. Hard to get material." The offering also indicated that the photographs depicted children engaged in fellatio and intercourse. Petitioner mailed an order for "Torrid Tots" to Far Eastern and enclosed a ten-dollar bill. In June 1987, petitioner received a copy of the magazine at his post office box. When he picked up the magazine, postal inspectors followed petitioner to his house. The inspectors searched his house pursuant to a search warrant, seizing the magazine and arresting petitioner. 2. Petitioner moved to dismiss the indictment on grounds of outrageous government conduct. After a hearing, the district court denied that motion. Gov't C.A. Br. 3. 3. The court of appeals affirmed. The court of appeals emphasized that it was "well established that government agents may approach, investigate and entice individuals already engaged in or contemplating criminal activity." Pet. App. 10. Noting that "(t)he extent of the government's participation is not * * * unlimited," the court observed that "(w)here undercover agents or informers engineer and direct the criminal enterprise from start to finish, due process prevents the conviction of even a predisposed defendant." Ibid. The court, however, underscored the fact that there was "no evidence that (petitioner) was threatened or coerced by government agent(s) into buying child pornography." Id. at 11. Rather, petitioner "responded to the solicitation voluntarily without any governmental prodding." Ibid. Moreover, as the court noted, petitioner "had previously ordered an illicit child pornography magazine, and the government targeted him on that basis." Ibid. The court analogized this case to Shaw v. Winters, 796 F.2d 1124 (9th Cir. 1986), cert. denied, 481 U.S. 1015 (1987), in which a police officer sold purportedly stolen food stamps to a defendant at a discount as part of an undercover operation aimed at dealers in stolen property. Pet. App. 11. The court of appeals observed that, in both this case and Shaw, "the appellant purchased the contraband willingly and without pressure." Ibid. In such circumstances, the court of appeals concluded, "claims of a violation of due process will not lie since the participation of government officials is not so pervasive as to violate notions of 'fundamental fairness.'" Ibid. ARGUMENT Petitioner claims that the undercover operation in this case violated the Due Process Clause. The court of appeals correctly found that contention meritless. In United States v. Russell, 411 U.S. 423, 431-432 (1973), this Court first introduced the notion of an "outrageous government conduct" defense and distinguished it from the entrapment defense. In dictum the Court noted that "we may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction," but the Court found that neither defense was satisfied in that case. Three years later, in Hampton v. United States, 425 U.S. 484, 489-490 (1976), a plurality of the Court expressed doubt that outrageous government conduct could ever provide a defense to a criminal defendant. Instead, any due process limitations come into play, the plurality concluded, only when governmental conduct violates a defendant's protected rights. Id. at 490. Two Justices concurred in the affirmance of Hampton's conviction, but expressed the view that an outrageous government conduct defense might be open to a defendant in an exceptional case. Id. at 492-495 (Powell, J., concurring in the judgment, joined by Blackmun, J.). In the wake of Hampton, the courts of appeals have indicated that a defendant may prevail on a claim of outrageous government conduct only by showing that the conduct was "truly outrageous." United States v. Miller, 891 F.2d 1265, 1267 (7th Cir. 1989)(collecting cases). Offers of inducement have been held proper because the Due Process Clause grants law enforcement agencies "wide leeway" in conducting investigations of crime. United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir. 1983). Petitioner claims that the undercover child pornography investigation in this case violated due process, Pet. 8-18, but the courts of appeals have repeatedly upheld sting operations similar to this one in other cases also involving child pornography. See, e.g., United States v. Jacobson, 916 F.2d 467 (8th Cir. 1990)(en banc), petition for cert. pending, No. 90-1124; United States v. Moore, 916 F.2d 1131, 1138-1140 (6th Cir. 1990); United States v. Duncan, 896 F.2d 271, 275 (7th Cir. 1990); United States v. Musslyn, 865 F.2d 945, 946-947 (8th Cir. 1989); United States v. Johnson, 855 F.2d 299, 304-305 (6th Cir. 1988); United States v. Goodwin, 854 F.2d 33, 35 (4th Cir. 1988); United States v. Driscoll, 852 F.2d 84, 85-87 (3d Cir. 1988); United States v. Esch, 832 F.2d 531, 538-539 (10th Cir.), cert. denied, 485 U.S. 908 (1988); United States v. Thoma, 726 F.2d 1191, 1198-1199 (7th Cir.), cert. denied, 467 U.S. 1228 (1984). /1/ As those courts have recognized, "(g)overnment undercover operations are severely needed to prevent and deter those who produce, sell, purchase or traffic in child pornography." United States v. Moore, 916 F.2d at 1139. /2/ While "the production of pornographic materials is a low-profile, clandestine industry, the need to market * * * requires a visible apparatus of distribution." New York v. Ferber, 458 U.S. 747, 760 (1982). Thus, "(t)he most expeditious if not the only practical method of law enforcement may be to dry up the market." Ibid.; see also United States v. Musslyn, 865 F.2d at 947 ("The nature of the production, distribution, and sale of child pornography itself justifies this type of undercover operation to be utilized against those who order it."). Because "the transmission of child pornography through the mails occurs within a shroud of secrecy," United States v. Johnson, 855 F.2d at 305, convincingly deceptive undercover operations are necessary "if our society is ever to be free of child pornography and the heinous crime of child sexual abuse," United States v. Moore, 916 F.2d at 1139-1140. See also United States v. Duncan, 896 F.2d at 276 ("effective enforcement of laws involving the 'consensual' crime of receiving child pornography shipped in foreign or interstate commerce will generally require, as a practical necessity, the controlled delivery of items of contraband to individuals * * * who are predisposed to commit this crime"); United States v. Goodwin, 854 F.2d at 37 ("Outrageous is not a label properly applied to conduct because it is a sting or reverse sting operation involving contraband."). In light of the pressing need to enforce the child pornography laws by "dry(ing) up the market," New York v. Ferber, 458 U.S. at 760, the government's conduct here was hardly unfair. As the court of appeals noted, "there is no evidence that (petitioner) was threatened or coerced by government agent(s) into buying child pornography." Pet. App. 11. To the contrary, petitioner responded to the solicitation voluntarily without any governmental prodding. On his own, after receiving a letter expressly referring to "children's pornography" and "youthful material," Pet. App. 5, petitioner ordered the advertised catalog, and, without any direct contact by government agents, petitioner willingly ordered from that catalog "Torrid Tots," a magazine described as picturing "(v)ery young girls, some as young as five-years-old, in all kinds of seductive poses." Moreover, as the court observed, petitioner "had previously ordered an illicit child pornography magazine" from one of the then largest commercial child pornographers in the United States, and it was on that basis that the Inspection Service targeted petitioner for Operation Looking Glass. Ibid. In sum, the undercover operation in this case fell well short of the type of "outrageous conduct" that could possibly establish a violation of the Due Process Clause. /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General GEOFFREY R. BRIGHAM Attorney APRIL 1991 /1/ Like this case, Goodwin and Driscoll also involved Operation Looking Glass. Esch involved a similar undercover operation labelled Operation Borderline. /2/ Child pornographers "commit serious crimes which can have devastating effects upon society and, most importantly, upon children who are sexually abused." United States v. Moore, 916 F.2d at 1139. In recommending the passage of the Child Sexual Abuse Act of 1986, the House Judiciary Committee explained: "Of all of the crimes known to our society, perhaps none is more revolting than the sexual exploitation of children, particularly for the purpose of producing child pornography." H.R. Rep. No. 910, 99th Cong., 2d Sess. 3 (1986). /3/ Petitioner complains that "(t)he highly personal and very detailed questions that (the) government asked (petitioner) by way of the questionnaire * * * represent an invasion of (his) most personal and private thoughts." Pet. 16. Petitioner was of course free not to answer the questions, and he clearly understood that he was assuming the risk that his answers, which he sent to strangers, could fall into the hands of unexpected recipients. Moreover, the detailed questionnaire was necessary to alleviate petitioner's suspicions that the undercover organization was in fact a law enforcement operation. Finally, even if the questionnaire were offensive, see Pet. App. 11 n.8, that fact alone would be insufficient to constitute "outrageous" government conduct -- a defense that is reserved for only "the most intolerable government conduct." United States v. Esch, 832 F.2d at 538. See also United States v. Musslyn, 865 F.2d at 947 ("Government conduct is not outrageous simply because it may be somewhat offensive.").