Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1987)

MEMORANDUM^** 

The defendant appeals the denial of a motion to dismiss an indictment for outrageous government conduct under the due process clause. The district court denied the motion and the defendant pled guilty while reserving the right to appeal.

The United States Postal Inspection Service (the "Service") properly identified Morelli as a person who had an interest in child pornography. The Service's initial mailing to Morelli included a four page questionnaire and an application for membership. Morelli filled out both and returned them. The Service then mailed an offering advertisement asking Morelli to respond if interested in receiving further information concerning "youthful material." Morelli signed and returned the letter.

Finally, the Service mailed a child pornography catalog to him. Morelli ordered a magazine entitled "Children Love" and received it on June 10, 1987. The defendant was charged with violation of 18 U.S.C. § 2252(a) (2), receipt of material depicting children in pornographic acts.

There are two categories of cases in which law enforcement conduct becomes constitutionally unacceptable: (1) the government utilizes unwarranted physical or mental coercion to effectuate the crime; or (2) the police completely fabricate the crime solely to secure the defendant's conviction. United States v. Emmert, 829 F.2d 805, 811 (9th Cir. 1987).

There is no evidence of unwarranted physical or mental coercion. The only "inducement" was the supply of child pornography which the purveyor said it could provide. The government may supply the contraband which is the heart of the offense. Hampton v. United States, 425 U.S. 484, 490-91 (1976).

Morelli argues that the government was so enmeshed in the investigation that it actually fabricated the crime to secure his conviction. In Greene v. United States, 454 F.2d 783 (9th Cir. 1971), a due process defense based on excessive police involvement was upheld.¹  Unlike Greene, extensive government involvement is absent in Morelli's case. Morelli took the action necessary to receive both the catalog and the magazine. In Greene, the government agent was the only customer of the illegal operation he had helped create. Id. at 787. For Morelli, the government only provided the opportunity for the crime to be committed and he took advantage of the opportunity. See United States v. Glaeser, 550 F.2d 483, 487 (9th Cir. 1977).

AFFIRMED.