ALLEN ARTHUR PORTER, PETITIONER V. UNITED STATES OF AMERICA No. 90-5079 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 Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A9) is not published, but the decision is noted at 895 F.2d 1415 (Table). The opinion of the district court (Pet. App. A11-A20) is reported at 709 F. Supp. 772. JUDGMENT The judgment of the court of appeals was entered on February 20, 1990. A petition for rehearing was denied on April 10, 1990. Pet. App. A10. The petition for a writ of certiorari was filed on July 9, 1990. 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 After a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted on one count of knowingly receiving child pornography, in violation of 18 U.S.C. 2252(a)(2). He was sentenced to a term of 30 months' probation and ordered to pay a $5,000 fine. The court of appeals affirmed. 1. The evidence at trial showed that, as part of a United States Customs Service project known as "Operation Borderline" designed to target the child pornography industry, federal agents mailed petitioner a brochure that offered child pornography for sale. /1/ The brochure stated: Hello Lolita Collector: You have been recommended from a reliable contact in which you have done business with. Because you are a trusted and proven customer, we offer you these special selections. As a serious collector, you are aware of the worldwide ban and intense enforcement on this type of material. Accordingly, what was legal and commonplace is now an "underground" and secretive service in order to continue serving collectors. This environment forces us to take extreme measures to protect us an to insure your delivery. We have been serving customers the world over for many years and are continuing to do so. To continue, we offer these selections and delivery on the following basis only. Pet. App. A1-A2. The brochure offered photographs of "boys and girls in sex action" and "(y)oung boys in sex action." Pet. App. A2. Other titles included "Lolita," "School Girls and Boys," "Lolitas Who Love Pissing," "Loving Children," "Lesbian Lolita," "Life Boy," "Chicken," and "Bambino." Ibid. Under the ordering instructions, the brochure gave the following directions: 2. Place payment and order in one envelope marked "Travel Dept." Place that envelope inside another and mail to us. 3. Orders will not be shipped in the mail to avoid intrusion and for privacy. Common carrier shipment only. * * * * * 6. All orders guaranteed. If your order is intercepted by customs authorities you will receive a letter. Send a copy to us for free replacement. Ibid. Petitioner responded to the solicitation, ordering a set of photographs entitled "Nymph Lovers," and making several alternate selections. Pet. App. A2. He also sent the following handwritten note: Please accept this order and find check for $16.50 enclosed. I am very interested in any films or video tapes available for this subject matter. Please forward information with my order. Ibid. U.S. Customs Special Agent John O'Malley arranged a package of twelve photographs -- copied from a child pornography magazine -- for shipment to petitioner. Another agent, posing as a DHL courier, hand-delivered the package to petitioner. Approximately ten minutes after petitioner accepted the package, Customs agents searched petitioner's house. The agents found the photographs from the package on a table and on the floor in petitioner's living room. Pet. App. A2-A3. 2. After the jury's verdict, petitioner filed in the district court a motion for judgment of acquittal asserting, among other claims, that the undercover investigation amounted to outrageous government conduct in violation of the Due Process Clause. Pet. App. A11. /2/ The district court acknowledged that "(w)hile it is clear that the Government may have implemented a solicitation that was more explicit about the ages of the children, the Court (could not) find that the Government's failure to do so amount(ed) to a violation of defendant's constitutional rights." Pet. App. A19. /3/ The court also pointed out that the government had "reason to believe Surin was involved in the receipt and distribution of child pornography." Id. at A20. Accordingly, the government "had a reasonable suspicion that Surin's mailing list contained the names of individuals interested in obtaining child pornography." Ibid. For that reason, the government's mailing the brochure to petitioner was understandable. 3. The court of appeals affirmed. Pet. App. A1-A9. In the court of appeals, petitioner renewed his contention that the government's conduct violated the Due Process Clause. The court summarily rejected that contention, holding that "(t)he trial court carefully applied (the) factors (set forth in United States v. Robinson, 763 F.2d 778 (6th Cir. 1985)) to the government's conduct in this case and concluded that there was no infringement of (petitioner's) constitutional rights." Pet. App. A5; id. at A6. /4/ ARGUMENT 1. Petitioner contends (Pet. 1-10) a government undercover investigation violates the Due Process Clause if the government does not have an "objective reasonable basis" (Pet. 1) for targeting the individual subject. This case, however, does not present that issue, since the record shows that the government had such a basis for investigating petitioner in light of his appearance on Joseph Surin's mailing list. See note 1, supra. As the district court explained, "(r)egardless of (petitioner's) assertions that child pornography was not marketed or possessed by Joseph Surin, the fact remains that Surin was charged with the distribution and receipt of child pornography through the mail and subsequently, has pled guilty to the charge of receiving child pornography through the mail." Pet. App. A20. Indeed, officers had bought a tape from Surin that purportedly contained child pornography. Pet. xxii; Pet. App. A20 & n.6. And a "search incident to the lawful arrest of Surin revealed the existence of a mailing list apparently utilized by Surin to distribute pornography through the mail." Id. at A20. Accordingly, "(h)aving reason to believe Surin was involved in the receipt and distribution of child pornography, the Government had a reasonable suspicion that Surin's mailing list contained the names of individuals interested in obtaining child pornography." Ibid. In any event, the courts of appeals have repeatedly held that the Due Process Clause does not require reasonable suspicion as a prerequisite for launching an undercover investigation. As the Seventh Circuit recently concluded, "(t)he Constitution does not require the government to have a preexisting good faith basis for suspecting criminal activity before initiating an undercover investigation." United States v. Miller, 891 F.2d 1265, 1269 (7th Cir. 1989); accord United States v. Jacobson, No. 88-2097NE (8th Cir. Oct. 15, 1990) (en banc), slip op. 4; United States v. Jenrette, 744 F.2d, 817, 824 & n.13 (D.C. Cir. 1984), cert. denied, 471 U.S. 1099 (1985); United States v. Jannotti, 673 F.2d 578, 609 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106 (1982); United States v. Myers, 635 F.2d 932, 940-941 (2d Cir.), cert. denied, 449 U.S. 956 (1980). Indeed, due process limitations "come into play only when the (g)overnment activity in question violates some protected right of the defendant." Hampton v. United States, 425 U.S. 484, 490 (1976) (plurality opinion) (emphasis omitted). Yet, as the Eighth Circuit has succinctly noted, a defendant has "no constitutional right to be free of investigation." United States v. Jacobson, slip op. 3. In other words, where "the conduct of the investigation itself does not offend due process, the mere fact that the investigation may have been commenced without probable cause does not bar the conviction of those who rise to its bait." United States v. Driscoll, 852 F.2d 84, 87 (3d Cir. 1988) (internal quotation marks and citation omitted). /5/ 2. Petitioner also claims that the government violated the Due Process Clause by "deliberately obscur(ing) the contraband nature" of the child pornography offered in the brochure sent to him. Pet. 9. The record belies that contention. As the district court noted, "(w)hile it is clear that the Government may have implemented a solicitation that was more explicit about the ages of the children, the Court cannot find that the Government's failure to do so amounts to a violation of defendant's constitutional rights." Pet. App. A19-A20. Indeed, the undercover solicitation was not ambiguous about its offer of child pornography. The government modeled the solicitation form after mail solicitation used by two European child pornography distributors that solicited mail order sales in the United States. Pet. App. A19-A20. The brochure petitioner received read in part: Hello Lolita Collector: You have been recommended from a reliable contact in which you have done business with. Because you are a trusted and proven customer, we offer you these special selections. As a serious collector, you are aware of the worldwide ban and intense enforcement on this type of material. Accordingly, what was legal and commonplace is now an "underground" and secretive service * * *. Pet. App. A1-A2, A12 (emphasis added). Moreover, the solicitation offered photographs of "boys and girls in sex action" and "(y)oung boys in sex action." Id. at A2, A12. The titles of the photograph packages included the following: "Lolita," "School Girls and Boys," "Nymph Lover," "Loving Children," "Lesbian Lolita," "Life Boy," "Lover Boys," "Mini Boys," and "Chicken." Id. at A2, A12. And the district court observed that the government presented evidence that the terms "chicken," "Lolita" and "nymph" are "known within the pornography industry to indicate child pornography." Id. at A12. As the court of appeals pointed out, petitioner "claim(ed) to be well-acquainted with the terminology of the pornography business." Id. at A3. /6/ 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 NOVEMBER 1990 /1/ The government had obtained petitioner's name from a mailing list belonging to Alpine Distributors, a company that dealt in the distribution of pornographic materials. Joseph Surin operated Alpine. Although Surin denied that he dealt in child pornography, two weeks after petitioner's trial he pleaded guilty to one count of knowingly receiving child pornography, in violation of 18 U.S.C. 2252(a)(2), and one count of lying to a federal investigative officer, in violation of 18 U.S.C. 1001. Pet. App. A2. /2/ Petitioner also sought a judgment of acquittal or a new trial based on the government's failure to present sufficient evidence and the court's instructions to the jury. The district court rejected those claims, Pet. App. A11-A18, as did the court of appeals, id. at A4-A7. Petitioner has not sought further review of them. /3/ The court recognized that "the transmission of child pornography through the mail is an elusive crime." Pet. App. A19. /4/ In Robinson, the Sixth Circuit identified the following factors for assessing under the Due Process Clause a challenge to government investigative conduct: (1) the need for the type of Government conduct in relationship to the criminal activity; (2) the preexistence of criminal activity; (3) the level of the direction or control of the criminal enterprise by the Government; and (4) the impact of the Government activity to create the commission of criminal activity. 763 F.2d at 785. /5/ Petitioner mistakenly relies (Pet. 5) on United States v. Jacobson, 893 F.2d 999 (8th Cir. 1990), and United States v. Luttrell, 889 F.2d 806 (9th Cir. 1989), as support for his contrary proposition. In United States v. Jacobson, No. 88-2097NE (8th Cir. Oct. 15, 1990) (en banc), the Eighth Circuit, sitting en banc, reversed the panel's opinion and thus "join(ed) with the courts of appeals that hold the (C)onstitution does not require reasonable suspicion of wrongdoing before the government can begin an undercover investigation." Slip op. 4. And the Ninth Circuit has recently ordered the Luttrell case to be "reheard by the en banc court." United States v. Luttrell, 906 F.2d 1384, 1384-1385 (1990). Accordingly, even if this case presented the issue regarding whether the government must have suspicion before targeting an individual for an undercover investigation, further review would be premature in the absence of any square conflict among the courts of appeals. /6/ In any event, any conceivable ambiguity that may have been created was overcome by the solicitation's explicit proviso that the photographs were subject to a "worldwide ban and intense enforcement," Pet. App. A1, A12, and express promises of "boys and girls in sex action" and "(y)oung boys in sex action fun," id. at A2, A12.