Internet Sex Probe Was a Trap, Court Says
Finding that an Air Force veteran was illegally entrapped, a federal appeals court has issued a sharp rebuke to undercover law enforcement officers who troll the Internet for sexual predators.
“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,” wrote Judge Alex Kozinski.
In a 2-1 decision Tuesday, a U.S. 9th Circuit Court of Appeals panel overturned the conviction of Mark D. Poehlman for traveling from Florida to Long Beach, purportedly to have sex with three girls, ages 7, 10 and 12.
The court ordered Poehlman’s immediate release from Lompoc federal penitentiary, where he was serving a 10-year-sentence.
“We are disappointed by the court’s decision but understand that the court has spoken,” the U.S. attorney’s office in Los Angeles said.
A spokeswoman said prosecutors are considering whether to appeal.
Poehlman, 40, was arrested in an Internet sting conducted by the Sexual Assault Felony Enforcement Team, an FBI-led multi-agency task force that investigates child sex exploitation crimes.
Posing as “Sharon,” a divorced mother of three, a task force member posted an ad on an Internet site for people with “alternative” sexual habits.
At the time, the court said, Poehlman’s life was in turmoil. His wife had recently divorced him and the Air Force had forced him to take early retirement when he revealed that he was a cross-dresser and foot fetishist.
Lonely and depressed, Poehlman turned to the Internet in search of a new mate who would accept his sexual peculiarities.
“Divorced mother of three looking for someone who understands my family’s unique needs. Serviceman preferred,” read Sharon’s ad.
Poehlman responded, saying he was looking for a long-term relationship leading to marriage, didn’t mind children and had unique needs of his own.
An e-mail exchange ensued. While Poehlman said he hoped she wouldn’t mind his “wearing your hose and licking your toes,” Sharon steered the conversation to her daughters, saying she wanted him to become their “special man teacher.”
“I am interested in being this special teacher,” Poehlman replied early on, “but in all honesty, I really don’t know what you expect me to teach them other than proper morals and give support to them where it is needed.”
Sharon then began dropping increasingly pointed suggestions that she wanted Poehlman to have sex with her daughters and finally made it “a condition of her own continued interest in him,” Kozinski wrote.
Poehlman finally got the hint, the judge said, and expressed a willingness to play sex instructor to Sharon’s children.
“The government played on Poehlman’s obvious need for an adult relationship, for acceptance of his sexual proclivities and for a family, to draw him even deeper into a sexual fantasy world involving these imaginary girls,” wrote Kozinski. He was joined by Judge Betty Fletcher.
In a dissent, Judge David Thompson said Poehlman failed to establish that he had been illegally entrapped. He also disagreed with Kozinksi’s version of events.
“While the government sent Poehlman messages,” Thompson wrote, “it did not first suggest sexual relations with children nor propose any specific sexual acts. Moreover, the government’s e-mails never forced Poehlman to respond and, in fact, offered Poehlman many opportunities to end the communications.”
Thompson also said that while Poehlman’s e-mails may have been free of sexual allusions during the first two weeks of the e-mail exchange, Poehlman spent the next 5 1/2 months detailing the sexual acts he would perform with Sharon’s children, even asking her to put the two oldest girls on birth control pills.
He said the Los Angeles federal jury that tried Poehlman in 1998 acted reasonably when it rejected his entrapment defense.
Edward M. Robinson, Poehlman’s defense lawyer, said Thursday that he has no quarrel with the mission of the Sexual Assault Felony Enforcement Team.
But in Poehlman’s case, he said, they “operated under the antiquated notion that if you have sexual proclivities that don’t meet the norm, then you must also be predisposed to have a sexual interest in children.”
Randy Aden, FBI supervisor in charge of the task force, said he could not comment on the Poehlman case or the appeals court ruling.
Since it was formed in 1997, he said, the task force has generated about 330 investigations of child pornography and sexual abuse. Of those, about 100 involved proactive undercover operations, while the rest grew out of complaints from citizens or other law enforcement agencies.
He said the task force has made 61 arrests, resulting in 51 convictions in state and federal courts.