United States v. Mark Douglas Poehlman

Citations: 217 F.3d 692; 2000 Cal. Daily Op. Serv. 5157; 2000 Daily Journal DAR 6887; 2000 U.S. App. LEXIS 14628; 2000 WL 821290Docket: 98-50631

Court: Court of Appeals for the Ninth Circuit; June 27, 2000; Federal Appellate Court

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Mark Poehlman, a cross-dresser and foot-fetishist, sought companionship in Internet discussion groups but encountered federal agents investigating child molestation instead. The case examines whether the government's actions constituted entrapment. 

Poehlman had served nearly 17 years in the Air Force but faced personal turmoil after his marriage ended due to his inability to control his compulsion to cross-dress, leading to his early retirement. Struggling with loneliness, he turned to online communities for support, facing harsh rejections from women until he connected with an individual named Sharon.

Sharon, who sought someone to understand her family's "unique needs," positively responded to Poehlman's message where he expressed his interest in a long-term relationship. Their correspondence developed with Sharon discussing her children and the need for a "special man teacher," while Poehlman indicated he would provide moral guidance and support to her children, ultimately expressing his desire to pursue a relationship with Sharon.

Sharon rejected Poehlman's advances, stating there could be no relationship between them. She inquired about his intended lesson for her children and expressed her willingness to discuss any disagreements openly. Poehlman, realizing her intent, agreed to act as a sexual instructor for her children. Their correspondence included explicit discussions about sexual acts, prompted by Sharon, and Poehlman sent gifts to her daughters. Eventually, he traveled from Florida to California to meet Sharon, who presented him with pornographic magazines featuring children and showed him photos of her daughters, aged 7, 10, and 12. She then directed him to an adjoining room to meet the children, but he was arrested instead by law enforcement. Poehlman was charged with attempted lewd acts with a minor, convicted, and sentenced to one year in state prison. After his release, he was arrested again for federal crimes related to the same incident and sentenced to 121 months. He appealed, claiming double jeopardy and entrapment. The court found entrapment sufficient to overturn the conviction without addressing the double jeopardy claim. The principles of entrapment were discussed, highlighting that government agents cannot create a criminal intent in an innocent person but can provide opportunities for crime.

Entrapment arises when the trier of fact assesses two key questions: whether government agents induced the defendant to commit a crime and whether the defendant was predisposed to commit it. Inducement occurs when the government creates incentives that significantly alter the risks and rewards of committing the offense, thereby increasing the likelihood of criminal conduct. Even if inducement is established, a conviction is still possible if the defendant is found to be predisposed to commit the crime, defined as a willingness and ability to engage in the offense prior to contact with government agents.

To raise an entrapment defense, the defendant must present evidence from which a rational jury could conclude that he was induced but not predisposed. This evidence can come from the government's case or through cross-examination. The government then bears the burden to prove beyond a reasonable doubt that the defendant was not entrapped.

In this case, the district court required the government to demonstrate that Poehlman was not entrapped and instructed the jury accordingly. The jury's conviction suggests it either found no government inducement or that Poehlman was predisposed to commit the crime. Poehlman claims he was entrapped as a matter of law, arguing that no reasonable jury could have ruled against him regarding inducement or predisposition.

Inducement can include various forms of government conduct, such as persuasion, coercive tactics, or appeals based on sympathy. Poehlman contends that agents used friendship and psychological pressure to manipulate him into offenses he would not have pursued otherwise. He maintains that his initial interest was in a long-term relationship, not in sexual conduct with children, and that he remained focused on the adult in his interactions.

Sharon initiated the idea for Poehlman to develop a relationship with her daughters, stating her need for assistance in their special education due to her dual parental role. Poehlman responded positively, expressing his willingness to treat the girls as his own and support them morally. Despite Sharon's insistence on a special male teacher role for him, Poehlman did not indicate any sexual interest in the children, instead focusing on proper moral guidance. He expressed a desire for an adult relationship with Sharon, indicating that he hoped for mutual sexual enjoyment. However, Sharon later made it clear that any continued communication required his agreement to act as a sexual mentor to her daughters.

The government's assertion that Sharon did not explicitly induce Poehlman is deemed too narrow, as her messages implied a sexual mentorship. Phrases like "special teacher" and "man teacher," along with her rejection of Poehlman's moral teaching proposal, reinforced this implication. Sharon's communications included suggestive details, such as her daughters’ excitement at finding a "special man teacher" and her references to her own past experiences with such teachers, hinting at sexual undertones.

In her correspondence, Sharon also mentioned her voyeuristic interest, stating she liked to watch, which further suggested a sexual context. Ultimately, Sharon placed conditions on their relationship by pressuring Poehlman to provide explicit lesson plans for her daughters, implying that his creativity would determine her continued interest in him as a mentor.

Sharon engaged Poehlman in a lengthy and increasingly intimate email exchange, during which Poehlman began signing off as "Nancy," a name he uses when dressing as a woman, prompting Sharon to adopt that name as a sign of acceptance. Sharon expressed concern that Poehlman had not addressed the education of her younger daughters, Bonnie and Karen, and pressed him to clarify plans for her oldest daughter, Abby, who was eager for information. Poehlman replied with inappropriate comments regarding the sexual education of the girls, suggesting they should learn to please themselves and others. Over the course of six months, Sharon persistently sought details about Poehlman's fantasies involving her daughters, while he attempted to establish a deeper personal connection, even proposing marriage, which Sharon firmly rejected, emphasizing her focus on finding a suitable teacher for her children rather than pursuing a romantic relationship. Despite this, Poehlman expressed willingness to relocate for the family. The excerpt also references a legal principle regarding entrapment, noting that while police may provide opportunities for crime, true inducement requires more substantial pressure or manipulation that alters a defendant's decision-making process.

In Jacobson, the government acknowledged its role in inducing the defendant to commit an offense by engaging with him over two years, promoting the notion that restrictions on sexually explicit materials were illegitimate and framing the act of obtaining such materials as a stance against censorship. This case aligns with prior rulings, including Sherman and Sorrells, where subtle government pressure exploited the defendants' vulnerabilities and loyalties to encourage criminal conduct. 

In contrast to a scenario where a defendant merely expresses interest, the interactions in this case involved substantial encouragement from Sharon, who clearly advocated for Poehlman to serve as a sexual mentor for her daughters. Her firm stance on sexual education and references to her own positive mentorship experiences diminished any potential reservations Poehlman might have had regarding the appropriateness of the activities. This context, coupled with the apparent parental approval, significantly impacted the dynamics of resistance to temptation, as noted in Sherman. Thus, it is evident that the government successfully induced Poehlman to engage in the crime, aided by Sharon’s justifications for the behavior.

Poehlman's desire for a relationship with Sharon and her daughters is evident, as he proposed marriage, considered relocating to California, discussed travel plans, and offered his military health benefits to entice her. Sharon, while rejecting a sexual relationship, encouraged his fantasies and even researched job opportunities for him in California. The government's manipulation of Poehlman's emotional needs played a crucial role in drawing him into a sexual fantasy concerning the girls. The First Circuit highlighted a similar case, noting that government manipulation can disrupt the balance of risks and rewards, leading to the defendant's criminal actions.

The jury could find Poehlman guilty if he was predisposed to the crime before interacting with government agents, as the relevant timeframe for assessing predisposition is prior to contact with law enforcement. The prosecution must demonstrate beyond a reasonable doubt that Poehlman had a predisposition to commit the crime before engaging with Sharon. The government claimed his eagerness to travel across state lines to mentor her children indicated predisposition. However, the precedent set in Jacobson illustrates that willingness alone does not establish predisposition; Jacobson's eventual crime was deemed a result of government inducement rather than his prior disposition. Similarly, Poehlman's willingness to break the law after extensive correspondence with Sharon cannot solely indicate predisposition, necessitating an examination of his mindset before their interactions.

The record lacks evidence supporting the government's claim that Poehlman had a predisposition to engage in sexual activities with children. No e-mails, chat room postings, or other documents were found that indicated Poehlman expressed an interest in sex with children or supported its legalization. The ad Poehlman responded to did not explicitly suggest sexual intentions, and the phrase "unique needs" could refer to various scenarios, not necessarily involving minors. Poehlman’s initial responses to Sharon's inquiries revealed confusion rather than any predilection for illicit acts; he even offered to act as a father figure instead of pursuing inappropriate suggestions. While the government argues that Poehlman's later explicit e-mails indicate predisposition, these communications were responses to Sharon’s suggestions and do not reflect his state of mind prior to her influence. The inference can be made that the government's persistent interactions, including intimate correspondence and personal gestures, contributed to Poehlman’s willingness to engage in the criminal act, thus failing to meet the burden of proof regarding his predisposition.

Statements made after government inducement can be evidence of predisposition if they indicate a defendant would have committed the offense without such inducement. However, only those statements reflecting an untainted state of mind are relevant. In Poehlman's case, his ongoing correspondence with Sharon, despite becoming more intimate, did not demonstrate any preexisting inclination toward committing the offense; rather, he attempted to integrate Sharon’s expectations into his own fantasies. The sole reference indicating any prior interest in children—his remark about having "always looked at little girls"—is insufficient to suggest he was inclined to engage in sexual relations with minors. The court found no credible evidence of Poehlman's predisposition to commit the offense for which he was convicted. Following the principle that law enforcement should not target otherwise law-abiding citizens who would not typically engage in criminal behavior, the conviction was reversed due to insufficient evidence, and the case was remanded with instructions for Poehlman's immediate release.

The mandate is to be issued immediately as per Federal Rule of Appellate Procedure 2. The government could not present the original email text at trial; however, Poehlman provided undisputed testimony about its content. The case primarily relies on email exchanges between Sharon and Poehlman, which contain numerous grammatical, spelling, and syntax errors. Due to the informal nature of these emails, the errors are presented in their original form without correction to avoid altering their meaning. 

Poehlman's email introduces himself, stating his age, marital status, and family situation, expressing a desire for someone who understands his family dynamics. He seeks assistance in special education for his children, inviting the recipient to share her thoughts and experiences. Another email from him details his background, including a retired Air Force career, and his personal interests, particularly regarding his preferences for wearing women's clothing and his foot fetish. He emphasizes his honesty, desire for family values, and willingness to treat Sharon's children well.

In subsequent communications, he expresses eagerness to fulfill the role of a teacher for Sharon's children, seeking clarification on her expectations while also indicating interest in a romantic relationship with her. He requests information about her children's ages and the specific teachings she envisions, indicating a hope for mutual support and affection.

Mark Appellant's Excerpts of Record reveal various communications expressing a willingness to teach girls self-defense and assertiveness, while emphasizing the importance of proper dress and behavior, with implied consequences for non-compliance. The correspondence indicates a lack of clarity on the role of a potential teacher, highlighting the complexity of the entrapment defense and suggesting that special verdict forms may aid jurors in focusing on specific elements of the defense. Additionally, interactions between Sharon and Poehlman demonstrate a dynamic where Sharon consistently redirects discussions back to the children, establishing boundaries regarding their relationship. Poehlman expresses a desire for collaboration on educational content, soliciting input on lessons, and showing an understanding of the potential rejection of his personal advances. Furthermore, he shares practical information about potential employment opportunities, indicating a proactive approach to job searching.

The key issue in the case relates to whether the defendant was entitled to an entrapment instruction, rather than whether he was entrapped as a matter of law. The ruling aligns with the principles established in *Gamache*, where the defendant did not argue entrapment due to disputed evidence. In this case, the evidence is largely documentary, with agreed-upon facts. The dissenting opinion emphasizes that an appellate court's role is to uphold the jury's verdict if substantial evidence supports it, regardless of differing opinions on case resolution.

Regarding the specifics of entrapment, the dissent asserts that entrapment as a matter of law was not demonstrated, as it requires undisputed evidence showing government inducement and lack of predisposition to commit the crime. The defendant, Poehlman, failed to present such evidence. While initial communications with a government agent did not indicate sexual interest, Poehlman's subsequent interpretations of vague messages suggested a shift. However, the government did not initiate sexual discussions nor compel responses, providing opportunities for Poehlman to disengage.

The dissent points out that a reasonable jury could find predisposition based on five factors: the defendant's character, whether the government suggested criminal activity, any profit from the activity, reluctance to engage, and the nature of government inducement. The weight of the defendant's reluctance is particularly significant in this determination.

Poehlman's character and lack of a profit motive favor his defense, as he has no prior sexual interest in children and his communications with Sharon did not indicate any intent to profit from a sexual relationship. However, other factors support the government's case. During an undercover operation, the government sent vague emails, and although Poehlman argued that Sharon initiated the sexual conversation, he admitted that she never explicitly suggested sexual acts with children. Instead, Poehlman introduced sexual remarks in his responses to Sharon's inquiries about a "special man teacher." Initially, his emails did not contain sexual references, but over the next five and a half months, he detailed sexual acts he would perform with Sharon's children and suggested putting the older girls on birth control. Prior to his arrest, an undercover agent showed him child pornography, to which Poehlman responded with eagerness regarding the children’s readiness for such acts and remarked about his attraction to young girls, claiming he meant women over eighteen. The jury found sufficient evidence of Poehlman's predisposition to commit the crime, independent of government inducement, leading to the affirmation of his conviction. The district court correctly instructed the jury, which rejected the defense based on the evidence presented.