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A federal court ruling may slap a leash on federal cyberagents looking for online predators whose fetishes cross from the bizarre into the criminal. Freeing a man convicted of trying to have sex with children, a divided 9th U.S. Circuit Court of Appeals panel ruled that Mark Douglas Poehlman was entrapped by federal agents who — through an America Online persona named Sharon — overstepped their bounds in luring the cross-dressing Air Force veteran to be a “special man teacher” to Sharon’s three imaginary girls. “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, who was joined by Senior Judge Betty Fletcher. Senior Judge David Thompson dissented, saying that whether the judges would have ruled differently from the jury is irrelevant. “Our task as an appellate court is not to re-weigh the evidence but to uphold the jury’s verdict so long as substantial evidence supports it,” Thompson wrote. Poehlman was divorced from his wife and discharged from the Air Force after 17 years, when he could no longer keep his foot fetish and impulse to dress in women’s clothing a secret. Alone and working at a retail electronics store, he began trolling Internet chat rooms for a like-minded woman. Having been rebuffed at every turn, he responded to an online ad from “Sharon” seeking a man with a military background who would not judge her family by society’s norms. Correspondence ensued and Sharon implied — but never said outright — that Poehlman should have sex with her children, even going so far as to suggest it was a condition of further correspondence. “Sharon repeatedly held her own relationship with Poehlman hostage to his fulfilling the role of special man teacher,” Kozinski noted in a footnote. It clearly took Poehlman a while to catch on, but he eventually began sending graphic responses to Sharon’s request to outline what he had in mind for her children. After traveling to California to meet Sharon in a Los Angeles hotel room, he was arrested by local and federal agents. Poehlman plead no-contest to state charges of attempted lewd acts with a minor and was given time served plus three years’ probation. With six months’ probation left, he was indicted on federal charges of crossing state lines to have sex with a minor. A judge sentenced him to 10 years. The 9th Circuit held that by materially altering the balance of risks and rewards bearing on Poelhman’s decision to commit the crime, the government induced him to do something he otherwise was not predisposed to do. Because the court found he was entrapped, it never reached Poehlman’s double jeopardy claim. “Even after Sharon gave him an opening [to discuss having sex with her daughters], Poehlman continued to focus his sexual attention on the mother and not the daughters: ‘If you don’t mind me wearing your hose and licking your toes then I am open for anything,’” Kozinski wrote, quoting a Poehlman e-mail. “I’m happy for Mark,” said Torrance, Calif., solo Edward Robinson, hired for the defense by Poehlman’s parents. “Clearly, he was induced by the government.” But Robinson didn’t think the opinion would curtail law enforcement’s online activities. “It’s 90 percent facts and 10 percent law,” Robinson said. But the conviction wasn’t overturned for errors in procedure. In fact, the court noted the jury was given the proper instructions under the law. Instead, the panel simply said the methods employed by the government went too far. The U.S. attorney’s office in Los Angeles, which argued the case, refrained from commenting specifically on it. “We are disappointed by the court’s decision, but understand that the court has spoken,” spokesperson Adriene Hill said. Poehlman, now a preoperative transsexual, has served 2 1/2 years in state and federal prisons.

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