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Flubbed Jury Instructions on Entrapment Leads to Reversal of Child Porn Distribution Conviction

In a case recently decided in the Second Circuit Court of Appeals, Scott Kopstein went to trial after engaging with an undercover officer on the internet and, thinking she was twelve years old, sending her child pornography. He did not really deny the substance of the charges, but he argued entrapment — i.e. that the idea to send out the child porn was the undercover’s, not his. For the record, most trial lawyers agree that the entrapment defense usually doesn’t work. But faced with a five-year mandatory minimum for distribution of child pornography and, no doubt, an absurdly high advisory sentence under the “eccentric” U.S. Sentencing Guidelines governing child porn cases, Mr. Kopstein decided to roll the dice.

The district court stated on the record — and the appeals court echoed — that the entrapment defense was “surely not frivolous.” Entrapment is an “affirmative defense” meaning the defendant has to come up with some evidence that his conduct was induced by a government agent. If he can show inducement, which Kopstein did here (the undercover asked for the pictures and implicitly threatened to discontinue her titillating conversation with him if he failed to send them), then the government must prove beyond a reasonable doubt that the defendant was “predisposed” to commit the crime. The Second Circuit has a three-prong test for predisposition, but the government almost always presents only the easiest to prove which is prong three: proof, beyond a reasonable doubt, that the defendant made a “ready response” to the agent’s inducement. If the government proves the ready response, the defense fails.

To even mount the entrapment defense, the defendant has to pretty much admit to committing the crime, which is always a problem in cases involving child pornography tried to a jury. In the Kopstein case, there was some back and forth with the jury, which was confused by the instructions on the law of entrapment. But, the circuit said, the judge’s “clarifying” instructions only made matters worse: the new instructions “(1) could be understood to say that the jury could convict even if the entrapment defense was successful; (2) lacked consistent direction as to what must be ‘induced’ to show entrapment; and (3) suggested that the government had to both ‘prove’ and ‘disprove’ entrapment.” Mr. Kopstein was convicted of the possession count, but is entitled to a new trial on the distribution, which carries a five-year mandatory minimum sentence.

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