U.S. Court of Appeals for the Second Circuit
Child Pornography — Entrapment
Jury Instructions — Jury Confusion
United States v. Kopstein
Judges Jacobs, Livingston and Lynch
Background: The defendant appealed from a judgment convicting him of transporting and shipping child pornography. He had delivered pornography to a federal agent posing as a 12-year-old girl during an electronic conversation in a “chat room.” He argued that he was entrapped into transporting and shipping the images when the agent threatened to terminate the conversation, and therefore, the defendant’s sexual excitement, if the defendant did not comply with the agent’s repeated requests that he transmit child pornography.
Ruling: The Second Circuit vacated. The court noted that it was critical for the defense that the jury be adequately instructed on entrapment. The Second Circuit noted that supplemental jury instructions and a review of the transcript demonstrated that the jury believed that the jury could still convict even if the entrapment defense was successful. Further, the jury lacked consistent direction as to what must be induced to show entrapment. Finally, there was an instruction that the government had to both prove and disprove entrapment.
Norman Trabulus for the defendant-appellant; William P. Campos, assistant United States attorney, for the appellee