http://www.nytimes.com/library/tech/00/07/cyber/cyberlaw/07law.html
July 7, 2000
CyberLaw Journal
Court Says Agents Went Too Far in Online Sting
By CARL S. KAPLAN
"Entrapment" is a word that defense lawyers sometimes use to fight criminal charges
against their clients and intimidate overzealous police officers.
But is it possible for entrapment to occur in cyberspace? According to a prominent
federal appeals court, the answer is yes.
Last week, a three-judge panel of the United States Court of Appeals for the Ninth
Circuit in Pasadena, Calif., voted 2-1 to dismiss a federal criminal charge against
Mark Douglas Poehlman, a self-described cross-dresser and foot-fetishist from Florida
who sought the company of like-minded adults on the Internet. What Poehlman found
instead was an undercover officer using the name Sharon seeking to catch child
molesters.
In an 18-page opinion by Judges Alex Kozinski and Betty B. Fletcher and written by
Judge Kozinski, the court found that the government's actions in luring and ensnaring
Poehlman amounted to improper entrapment. Judge David R. Thompson dissented.
The decision is perhaps the first federal appellate ruling to find entrapment in the
context of an Internet-based sex investigation. It comes against a backdrop of
increasing undercover efforts by federal, state and local law enforcement authorities.
Agents frequently pose as children online to root out so-called "travelers" --
computer-savvy adults who use the Internet to contact youngsters and then travel
across state lines with the intent to engage in sexual acts with them.
The Federal Bureau of Investigation, for example, has gone after online child
pornography and sexual exploitation of children on the Internet through its Innocent
Images program since 1995. Last year, it opened undercover investigations in 1,497
cases -- a majority of them involving travelers, according to Angela Bell, a
spokeswoman for the bureau.
Legal experts said that it is too early to determine whether the Poehlman decision
will affect undercover sex sting operations on the Internet.
What is clear however is that in at least one case, an appeals court has found that
government agents, in their eagerness to catch a pedophile, apprehended an otherwise
law-abiding citizen who, if left to his own devices, would most likely never have
broken the law.
"Prior to his unfortunate encounter with Sharon, [Poehlman] 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," Judge Kozinski wrote. "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."
Following the court's decision, which was issued on June 27, Poehlman was released
from custody and is now living in California, said his lawyer, Edward M. Robinson.
According to legal papers, Poehlman's wife divorced him after he admitted to her that
he could not control his compulsion to cross-dress. Lonely and depressed, and
separated from his two children, he began to trawl Internet "lifestyle" discussion
groups seeking a suitable adult companion. Most often, he was rejected by women after
they learned of his sexual interests.
Eventually, in the summer of 1995, Poehlman got a positive response from a woman named
Sharon, who had posted an ad indicating that she was looking for someone who
understood her family's "unique needs." 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," according to legal documents.
In the next series of e-mail messages, Sharon explained that she had three children
and that she wanted "someone to help with their special education." At one point she
also said that she was looking for "a special man teacher" for her children. Poehlman
told Sharon that he did not understand what this meant. He said that he would teach
the children "proper morals," and he reiterated his interest in Sharon.
Sharon rebuffed Poehlman's interest in her and indicated more directly that she was
really interested in a special teacher for her kids. Poehlman "finally got the hint,"
observed Judge Kozinski, and expressed his willingness to play sex instructor to
Sharon's children. In later e-mail messages, Poehlman graphically described to Sharon
his ideas, which included "various acts too tasteless to mention," Judge Kozinski
wrote.
Poehlman and Sharon eventually made plans for him to travel to California. After
arriving at a hotel room where he met a woman who said she was Sharon, he entered an
adjoining room where he was to meet her children. Instead, he was arrested.
Following a conviction for a state crime, Poehlman was convicted by a federal jury of
crossing state lines to engage in sex acts with a minor. He was sentenced to 10 years
in prison.
The appeals court found that the undercover agents in the federal and state task force
did a great deal more than just provide Poehlman with an opportunity to commit a
crime. Indeed, by playing on his obvious need for an adult relationship, for
acceptance of his sexual proclivities and for a family, the law enforcement agents
acting as Sharon exerted excessive pressure on Poehlman, drew him deeper into a
fantasy world and induced him to commit a crime.
"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," Judge
Kozinski wrote.
Under current law, even if a jury finds that the government induced a defendant to
commit a crime, the defendant nevertheless may be found guilty if he is "predisposed"
to commit the offense. But the appellate panel found that there was no evidence that
Poehlman was predisposed to have sex with minors prior to his encounter with Sharon.
To the extent that the jury might have found that Poehlman was predisposed to commit
the offense, "that finding cannot be sustained," the court said.
Edward Robinson, the defense lawyer, said in an interview that he has no evidence that
there are other Poehlman-like defendants in the court system. But he believes there
"certainly might be others."
"There is a legitimate place on the Internet for law enforcement to try to ferret out
people preying on children," he said. "In this case, the agency or task force
investigating the case made no effort to differentiate between people looking for
adult sexual contact and those looking for pedophiliac activities."
A spokeswoman for the United States Attorney's office in Los Angeles, which prosecuted
Poehlman, said in a prepared statement: "We are disappointed by the court's decision
but understand that the court has spoken."
J. Robert Flores, a former federal prosecutor who specialized in child exploitation
cases and who is now vice president and senior counsel for the National Law Center for
Children and Families, said that the appellate court's ruling was "not an unreasonable
decision." He added as a caveat, however, that he was not familiar with all the
evidence and that he wished the court had shown more deference to the jury's decision.
Notwithstanding the Poehlman decision, Flores expressed confidence that undercover
agents rarely if ever engage in legal entrapment of online sexual targets.
"I hope this [decision] does not in any way diminish efforts by U.S. Attorneys to take
these cases, because the alternative is to wait until you have child victims before
you can take these people off the streets," he said.
CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to
other columns in the series.
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krys, you live on in our memories
your life's promise merged with our own dreams
but when we heard you died we cried
no one could answer the question, "why?"
-- jeradonah, Oct 30 '99
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