Child-Porn Retrial After Jury Instruction Hiccup
MANHATTAN (CN) - Prosecutors must retry the college student convicted of sending child porn because of confusing instructions for jurors on his entrapment defense, the 2nd Circuit ruled on Monday.
Scott Kopstein was a 20-year-old college student when entered an Internet chatroom under the screen name "mikehrny" and started a conversation with a user named "Hopeinsac."
Though Department of Homeland Security agent David Lombardi was the user behind "Hopeinsac," he identified himself to Kopstein as a 12-year-old girl from California.
Kopstein immediately turned the conversation to sex and sent the agent a photograph of his penis less than nine minutes into their conversation. The agent sent back a "yearbook-style" photograph of a young girl, but Kopstein persisted that he wanted "more naughty pics," according to the appellate court opinion.
The agent said that he would send those if Kopstein sent pictures with "a girl," the opinion states.
"Only at that point did Kopstein send the agent child pornography," the majority opinion states.
Federal agents found hundreds of illicit images of minors on Kopstein's computer and obtained a signed confession from him admitting to chatting with younger girls online for three years.
Kopstein claimed at trial that the agent entrapped him into charges of "transporting and shipping" the images, which carried a mandatory five-year minimum sentence.
During deliberations, jurors expressed confusion about the burden of proof in an entrapment defense. They then found Kopstein guilty on all counts.
In ordering a new trial, a divided three-judge panel with the 2nd Circuit said U.S. District Judge Joanna Seybert's instructions "compounded the jury's bewilderment regarding Kopstein's only viable defense."
"Kopstein was clearly, and admittedly, not induced to possess child pornography and to initiate the chat, but that does not say whether Kopstein was induced to commit the offenses of conviction: i.e., transport and shipment of child pornography," Judge Dennis Jacobs wrote for the majority.
To find entrapment, the jury must first decide whether a government agent took the "first step" toward the execution of a crime, but Seybert never specified that this meant this referred to the charged offenses, according to the 34-page opinion.
"The court should have made clear that the critical inquiry concerned inducement of the transport and shipment, and not inducement of other conduct, however reprehensible," Jacobs wrote.
In a withering dissent, Judge Debra Ann Livingston wrote that what the majority opinion "omits to mention is more revealing than what it says."
These missing details show that Kopstein was "not entrapped, but utterly predisposed" to commit the crimes, she wrote.
She noted that agents found almost 200 child pornography images on Kopstein's computer, and obtained a signed confession of him stating that he spent the last three years chatting with young girls.
Kopstein said that one of them was "probably nine," and that he probably collected 1,000 pictures and videos from these chats, according to the dissent.
Although Kopstein claimed he would never have been inclined to share the images without the agent's solicitation, he agreed to send them 14 seconds after the request, Livingston noted.
She describes the content of the images and videos in graphic detail.
Rejecting this position, the majority wrote that the "revolting particulars" of Kopstein's case do not matter because it was up to the jury to reject the entrapment defense.
"A jury might find, as the dissent does, that Kopstein's predisposition to engage in other conduct bears upon his predisposition to transport and ship the child pornography solicited by the government agent," Jacobs wrote. "Then again, a jury might find that it does not."
The case will be remanded for a new trial.