Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1990)

MEMORANDUM^** 

Appellant, Stephen Wegman, appeals from a conditional plea of guilty to knowingly receiving visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. section 2252(a) (2) (B). Before engaging in plea negotiations, Wegman filed a motion to dismiss his indictment on the grounds that the government's "reverse sting" operation constituted entrapment and that the government's actions amounted to outrageous conduct in violation of his Fifth Amendment due process rights. The district court denied the motion. We affirm.

Wegman contends that the district court erred in failing to dismiss his indictment on the ground that the government's sting operation constituted entrapment. In reviewing the denial of a motion to dismiss based on entrapment, this court must view the evidence in the light most favorable to the government, and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Citro, 842 F.2d 1149, 1151 (9th Cir.), cert. denied, 109 S. Ct. 62 (1988).

Entrapment is generally a jury question. United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986). In order to find entrapment as a matter of law, there must be undisputed evidence that a government agent induced an otherwise innocent person to commit the crime by trickery, persuasion, or fraud, and that the defendant was not otherwise predisposed to commit the crime. Citro, 842 F.2d at 1151. "The controlling question on review is whether the defendant lack [ed] the predisposition to commit the act." United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir.), cert. denied, 471 U.S. 1139, 105 S. Ct. 2684, 86 L. Ed. 2d 701 (1985).

We examine five factors in determining the predisposition of a defendant: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government's inducement. Id. While no single factor alone is sufficient to determine the defendant's predisposition, the critical inquiry frequently centers on the question of whether the defendant evidenced reluctance to commit the offense. Id.

Although United States Customs agents made the initial suggestion of criminal activity by sending Wegman a one-page advertisement offering photographs of boys and girls engaging in sexual conduct, the record clearly would permit a reasonable juror to find that Wegman was predisposed to receive such photographs. The government's advertisement did not require, or demand, a response; yet, Wegman responded to the advertisement by placing an order for multiple photographic sets and requesting "information on larger pictures." Moreover, Wegman, without any inducement from the government, included with his order a typewritten letter offering publication rights to a book on "child love."

The fact that the government further induced Wegman's involvement in the distribution of child pornography by asking for more information about his book does not vitiate our conclusion that a reasonable juror could find Wegman was predisposed. The letter requesting information about Wegman's book was simply a follow-up based on Wegman's response; it was not part of an effort repeatedly to induce Wegman to commit the crime of receiving child pornography, since Wegman had already mailed his order form and money order for the sting operation photographs. Moreover, Wegman's unsolicited offer to sell his publishing rights in the manuscript not only constitutes evidence that he had a significant interest in child pornography prior to his receipt of the government's advertisement, but exemplifies his willingness to go beyond the scope of the sting operation.

The materials seized from Wegman's home pursuant to the search warrant further evidence Wegman's predisposition to receive child pornography. In addition to 48 photographs ordered from the government "reverse sting" enterprise, the customs agents seized other photographs of nude children, order forms from child pornography distributors, and documents indicating an intent to produce a child pornography publication, "N Graphics."

Nothing in the record suggests that Wegman exhibited any reluctance to receive photographs of minors engaged in sexually explicit conduct. Viewing the evidence in the light most favorable to the government, we conclude that there was sufficient evidence for a rational trier of fact to conclude that Wegman was predisposed to commit the crime. Accordingly, we find that the government's action in this case did not amount to entrapment as a matter of law.

Wegman contends that the district court erred in failing to dismiss his indictment on the ground that the government's sting operation constituted outrageous government conduct violative of his Fifth Amendment due process rights. We review this claim de novo. See United States v. Wylie, 625 F.2d 1371, 1378 (9th Cir. 1980), cert. denied, 445 U.S. 955, 100 S. Ct. 1698, 63 L. Ed. 2d 791 (1981). We conclude that none of the government's actions constituted outrageous governmental conduct.

In United States v. Ramirez, 710 F.2d 535, 539 (9th Cir. 1983), we held that "prosecution is barred 'only when the government's conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.' " Id. (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976), cert. denied, 430 U.S. 965, 97 S. Ct. 1644, 52 L. Ed. 2d 356 (1977). Wegman asserts that the government engaged in outrageous conduct by engineering and directing the criminal enterprise from start to finish. Although this defense has been raised numerous times,¹  only two decisions from any circuit have dismissed indictments based on such a defense.²  As we noted in Ramirez, 710 F.2d at 540, " [i]n both cases the outrageous misconduct was, in effect, the generation by police of new crimes merely for the sake of pressing criminal charges against the defendant."

In contending that the government's actions were outrageous, appellant relies upon the principle that "the government may [not] involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators." Greene v. United States, 454 F.2d 783 (9th Cir. 1971). Here, the government sent a one-page advertisement for child pornography through the mail and then made a controlled delivery of the pornography ordered in response to the advertisement. The government's involvement in the crime was limited to brief contacts, through correspondence and through an agent posing as a mail courier, over the course of a few months. Such a limited involvement in the creation and maintenance of the criminal operation falls short of outrageous conduct. We concluded in United States v. Citro, 842 F.2d 1149, 1153 (9th Cir. 1988), that the government did not violate a defendant's due process rights by allowing undercover agents to (1) propose a counterfeit credit card operation to the defendant, (2) provide the defendant with the necessary details for establishing the operation, (3) supply the counterfeit credit cards, and (4) arrest him when he finally used them. The undercover agents in this case were not nearly as directly involved in creating and maintaining the criminal operation as those in Citro.

In United States v. Mitchell, No. 88-5063, slip op. 12333 (9th Cir. October 1, 1990), we held that United States postal inspectors did not engage in outrageous government conduct by creating and maintaining a child pornography sting operation similar to the one employed in this case. The postal inspectors in Mitchell identified persons apparently predisposed to receive child pornography by mailing unsolicited sex questionnaires to persons targeted from various government undercover operations. The inspectors then sent a catalog and an order form for child pornography to those who the government believed exhibited pedophilic tendencies by their responses. The postal inspectors would mail the ordered material and arrest the person who ordered and received it. Mitchell held that the government's sting operation, while "particularly offensive," did not "violate notions of " 'fundamental fairness'." Mitchell, No. 88-5063, slip op. at 12343 & n. 8. The government's involvement in Wegman's case is no more pervasive than it was in Mitchell. Accordingly, we do not find the Customs agents limited involvement in creating and maintaining the child pornography sting operation in this case "so grossly shocking and so outrageous as to violate the universal sense of justice." Ramirez, 710 F.2d at 539 (citation omitted).

Finally, Wegman seeks to have this action dismissed on the grounds that the government's continued use of "pornographic materials constitutes an unreasonable and continuing abuse and invasion of the privacy of the minor children involved." Appellant's Opening Brief at 2. We agree that " [g]overnmental 'investigation' involving participation in activities that result in injury to the rights of its citizens is a course that courts should be extremely reluctant to sanction." United States v. Archer, 486 F.2d 670, 677 (2nd Cir. 1973). In this case, however, there was no cognizable injury to any third parties. The government delivered through an undercover government agent previously seized child pornography. The Customs agents did not freely redistribute the photographs to the public. Rather, they delivered the photographs to appellant and immediately served a search warrant after he received them. This action did not result in significant additional injury to the minor children photographed and does not rise to the level of outrageous government conduct. See United States v. Duncan, 896 F.2d 271 (7th Cir. 1990); United States v. Thoma, 726 F.2d 1191 (7th Cir. 1984).³ 

The district court did not err in denying Wegman's motion to dismiss based on outrageous governmental conduct.

AFFIRMED.