Sting Operation Limits Drawn by High Court : Crime: Farmer’s pornography conviction overturned. Government cannot induce lawbreaking, justices say.

In a surprise ruling that limits government sting operations, the Supreme Court said Monday that investigators may not seek to trap an unwary “innocent” unless they first have clear evidence that the person is likely to commit a crime.

The 5-4 decision overturns the conviction of a Nebraska farmer who ordered illegal child pornography through the mails but only after U.S. Postal Service inspectors sent him at least 10 solicitations over 26 months.

“In their zeal to enforce the law, government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act and then induce commission of the crime so that the government may prosecute,” wrote Justice Byron R. White for the court.

“The prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents,” he declared.

Experts on the so-called “entrapment defense” said that Monday’s decision does not make new law so much as it strongly restates a position first taken in 1958 by the more liberal court under Chief Justice Earl Warren.

“The message here is that the government’s job is to catch criminals, not to turn law abiding citizens into criminals,” said Steven R. Shapiro, an American Civil Liberties Union lawyer. “It is not a new message but one that the court has to repeat every so often.”

The outcome was surprising because today’s more conservative court rarely reverses a criminal conviction. President Bush’s two appointees, conservative Justices David H. Souter and Clarence Thomas, voted against the government in this case, as did Justices Harry A. Blackmun and John Paul Stevens.

In recent years, government agents have regularly used sting operations to trap unwary criminals. They have nabbed burglars seeking to “fence” stolen items, drug dealers trying to sell narcotics and politicians taking bribes meant to influence their decisions.

While many defendants claim that they have been entrapped, few have won acquittals. To prevail, a defendant must show both that the government “induced” his criminal act and that he was not “predisposed” to commit such a crime.

If a man solicits sex from a female police officer posing as a streetwalker, he cannot claim entrapment. His request “amply demonstrates (his) predisposition,” the court said. Similarly, government agents may take elaborate steps to trap a person who, based on other evidence, is quite likely to commit a further crime.

But in this case, the court was confronted with a law abiding citizen who broke the law only after being encouraged repeatedly to do so by postal inspectors.

“The government may not play on the weaknesses of an innocent party and beguile him into committing crimes which he otherwise would not have attempted,” White said.

A lawyer for an anti-pornography group said that the decision will hamper government efforts to prosecute child pornographers.

“This material is made by pedophiles and they don’t do it openly. You have to try to get into their underground network,” said Gene L. Malpas of the National Center for Protection of Children and Families. “They went after this guy because they realized he was a potential user of child pornography.”

But Prof. Paul Marcus, an entrapment expert at the College of William and Mary, said that the ruling will force law enforcement officials to choose their targets more carefully.

“If you have to relentlessly pursue someone, if it takes the government months and months to soften someone up, that suggests the person is not predisposed to commit a crime,” Marcus said.

The troubles for Keith Jacobson, a 56-year-old Nebraska farmer, began in February, 1984, when he ordered two nudist magazines from a San Diego mail order house. Though neither publication was obscene, both contained photos of nude teen-age boys.

Three months later, a new federal law made it illegal to receive through the mails sexually explicit photos of children.

Postal inspectors then began poring through old mailing lists, seeking targets for a sting. Using phony organizations such as “The American Hedonist Society,” “Midlands Data Research” and the “Heartland Institute for a New Tomorrow,” they sent Jacobson a series of mailings. They included surveys of his sexual interests as well as encouragements to fight for free speech and against the government’s “hysterical nonsense” about pornography. One postal inspector tried to interest Jacobson in a “pen pal” correspondence concerning sex.

Because Jacobson had shown a mild interest in homosexual activity involving teen-agers, inspectors continued to send him occasional mailings. When he was finally offered a catalogue of child pornography, Jacobson ordered a magazine called Boys Who Love Boys. U.S. Customs agents arrested him when he appeared at a local post office, and they searched his farmhouse. They found no other child pornography.

At his trial, Jacobson’s lawyers described him as an Army veteran of Korea and Vietnam who came home to take over his family’s farm. Six acquaintances from the small town of Newman Grove testified that he was well-known and well-liked in the community. On the witness stand, Jacobson described his sexual preference as “bisexual” but said that he had never practiced homosexuality.

A federal jury convicted him in 1988 of receiving a prohibited mailing. He was sentenced to two years’ probation and 250 hours of community service.

A divided federal appeals court upheld his conviction, ruling that the government was “a detector of the crime,” not a “manufacturer” of it. Bush Administration lawyers agreed, noting that Jacobson “promptly took advantage” of the opportunity to buy the outlawed child pornography.

The justices disagreed in the case (Jacobson vs. U.S., 90-1124) and reversed the conviction. In dissent were Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy and Antonin Scalia.

They said that the evidence showed Jacobson was a “willing participant” in buying child pornography, not an “innocent dupe.”