by Doug Ankney

The U.S. Court of Appeals for the First Circuit clarified when trial courts must instruct juries on the defense of entrapment.

As part of a “sting” in 2015, Special Agent Ryan Seig of the Homeland Security Investigations Child Exploitation Unit created a fictitious Grindr profile under the name “Dave W.” (Grindr describes itself as “the largest social networking app for gay, bi, trans, and queer people,” and Grindr requires all of its users to be at least 18 years old.) Seig wrote in his profile: “Looking for young fun to share my young fun” and described Dave as “Muscular, White, Single.”

Rafael Perez-Rodriguez texted Dave, saying: Hello what are you doing?

Dave: Hey what’s up?

Perez: Let’s see you.

Dave: Cool, do you like really young guys?

Perez: Yes. Age? I started at 8.

Dave: Me? 35, but my boyfriend is young.

Perez: Hahaha Okk How old is he? What does your boyfriend like?

Dave: He likes everything :) He is very young, what age do you like?

Perez: The younger the better. I don’t discriminate. I started at 8 hehehe. So you tell me what does he like to do?

Dave: ... My boyfriend is 11 years old. Do you want to play with him?

Perez: Mmmm yessss. Where is he? ... Yes, I want to play.

Over the next five days, the two men continued texting one another. Perez expressed sexual interest in Dave’s boyfriend, but Perez also continually asked for “pics” of Dave. And Dave continued reminding Perez of his 11-year-old boyfriend saying “we’re going to have a lot of fun ... Him you and I.” Dave told Perez the boy was excited about the encounter and that it would “be good for him.”

The two men agreed to meet at the Martinez Nadal train station. Perez twice told Dave that he wanted to meet Dave first without the 11-year-old in attendance. Perez said he wanted to “get to know Dave” first and that he wanted the two men to “get horny for each other” without the boy being present. When Perez arrived for the meeting with Dave, he was arrested.

Perez was charged with one count of attempted enticement of a minor for unlawful sexual activity with a minor in violation of 18 U.S.C. § 2422(b). Prior to commencement of the jury trial, Perez filed an ex parte request for an entrapment instruction. After the close of the evidence, the parties attended a charging conference. The conference was not recorded, but apparently, Perez had renewed his request for the entrapment instruction because the U.S. District Court for the District of Puerto Rico denied the request, stating “[t]he ruling is based on the arguments presented by the government and defendant’s response during the charging conference in connection with predisposition.” The court subsequently charged the jury, and Perez raised no further objections.

The jury convicted Perez. He appealed, arguing, inter alia, that the trial court erred in rejecting his requested entrapment instruction.

The First Circuit observed “[i]t has been the longstanding rule of this circuit to treat a challenge to jury instructions as forfeited if the defendant fails to object to the instructions after the judge has charged the jury, regardless of whether he previously brought the matter to the judge’s attention.” United States v. Wilkinson, 926 F.2d 22 (1st Cir. 1991). Because defense counsel had failed to object, the Court reviewed for plain error. United States v. Baltas, 236 F.3d 27 (1st Cir. 2001).

Entrapment provides a defense if law enforcement officers “originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Jacobson v. United States, 503 U.S. 540 (1992). “Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.” Sherman v. United States, 356 U.S. 369 (1958). The entrapment defense has two prongs: “(1) improper government inducement and (2) the defendant’s lack of predisposition to commit the offense charged. United States v. Teleguz, 492 F.3d 80 (1st Cir. 2007).

Improper inducement, also known as “government overreach,” occurs when law enforcement officers engage in conduct “of the type that would cause a person not otherwise predisposed to commit a crime to do so.” United States v. Hinkel, 837 F.3d 111 (1st Cir. 2016). The mere creation of an “opportunity to commit a crime” through a “sting” operation does not, in and of itself, constitute improper inducement. United States v. Gendron, 18 F.3d 955 (1st Cir. 1994). Rather, “[a]n ‘inducement’ consists of an ‘opportunity’ plus something else—typically, excessive pressure by the government upon the defendant or the government’s taking advantage of an alternative, noncriminal type of motive.” Id. Some “plus” factors that may transform a government operation from a permissible sting to improper inducement include: “intimidation and threats, dogged insistence, playing on the defendant’s sympathies, and repeated suggestions.” Id.

“Even very subtle governmental pressure, if skillfully applied, can amount to inducement.” United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000). The determination of whether the government’s behavior crossed the line from permissible law enforcement tactic to improper inducement is often a difficult factfinding question for the jury because “the facts [may] fall somewhere in a middle ground between what is plainly proper and what is plainly improper.” United States v. Acosta, 67 F.3d 334 (1st Cir. 1995).

The second element of the entrapment defense focuses on whether the “defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson. The purpose of the predisposition inquiry is to determine whether the defendant is “someone who would likely commit the crime under the circumstances and for the reasons normally associated with that crime, and who therefore poses the sort of threat to society that the state seeks to control, and which the government, through the ‘sting,’ seeks to stop.” Gendron.

The relevant time frame for assessing predisposition is before the defendant has any contact with government agents. Poehlman. The predisposition analysis examines: “(1) the character or reputation of the defendant; (2) whether the initial suggestion of criminal activity was made by the Government; (3) whether the defendant was engaged in criminal activity for profit; (4) whether the defendant showed reluctance to commit the offense, which was overcome by governmental persuasion; and (5) the nature of the inducement or persuasion offered by the Government.” United States v. Gamache, 156 F.3d 1 (1st Cir. 1998).

The Court explained that the “second, fourth, and fifth of these factors are also relevant to the improper inducement analysis. Thus, while improper inducement and lack of predisposition are two separate prongs, the same factual evidence will often be relevant to both prongs.”

A defendant is entitled to the entrapment jury instruction if evidence at trial meets the modest burden of production on both prongs of the defense. United States v. Rodriquez, 858 F.2d 809 (1st Cir. 1988). In determining whether a defendant has met his burden, the trial court is required to construe the evidence in the light most favorable to the defendant. Id. This burden is met if the record contains evidence that makes the entrapment defense “plausible” or superficially reasonable.” Gamache.

The Court explained that it is not the trial court’s function to determine if entrapment has been demonstrated; rather, it’s the court’s function to determine if there is anything in the evidence that could support findings of inducement and no predisposition. The Court further explained that “a judge should not hesitate to send the question to the jury if there is even ambiguous evidence of entrapment” since determinations regarding improper inducement and predisposition are questions of fact for the jury to decide.

In the instant case, the evidence revealed that the Government offered Perez a sexual encounter with Dave and with an 11-year-old boy. The sexual encounter was described as a “threesome.” The Court stated that this type of “bundling of licit and illicit sex into a package deal” could constitute a “plus factor” for purposes of establishing improper inducement. Hinkel. The Government took advantage of a noncriminal type of motive—seeking an adult consensual sexual encounter—and combined it with a criminal act. Gendron. The Court explained that Hinkel and Gamache establish that a defendant can still meet his burden “even if he responded eagerly or enthusiastically to the proposed criminal conduct.”

Additionally, Seig introduced the boy as Dave’s boyfriend—implying the minor was a consenting participant. Dave also told Perez the boy was “excited” about the encounter and it would be “good for him.” These comments minimized the abuse and downplayed the harm and otherwise justified it, according to the Court. This, too, could be a “plus factor.” Hinkel.
Turning to predisposition, the Court observed that as to Gamache’s factor (1), Perez had nothing in his criminal history suggesting a sexual interest in minors.

As to factor (2), it was the Government that suggested to Perez a sexual encounter with a minor. Perez had contacted Dave on a social media site that requires its users to be 18 or over.

While it was true that Perez had said in his message that he “started at 8,” this comment—when interpreted in the light most favorable to Perez—meant he had his first sexual encounter at age eight. And the Court stated that Perez’s comments that he was eager to engage in illicit sex was insufficient to remove the question of predisposition from the jury’s purview. Gamache.

As to factor (3) there was no evidence of Perez engaging in criminal activity for profit.

Regarding factor (4), Perez twice insisted that he wanted to first meet with Dave alone, without his 11-year-old “boyfriend.” This could be interpreted to mean that when the idea of sex with a minor went from fantasy to potential reality, Perez was reluctant to participate, the Court reasoned.

As to factor (5), from the beginning, Perez expressed an interest in Dave, repeatedly asked for pictures of Dave, and continually asked for descriptions of Dave’s body. As for their first meeting, Perez wanted it to be with Dave only. Taken together, these statements could mean that Perez had never before thought of sex with a minor until the Government suggested it, the Court observed.

Consequently, the Court concluded that the district court erred in not giving the requested entrapment instruction. The Court next concluded Perez had demonstrated plain error, i.e., he had shown an obvious error that affected his substantial rights and the error undermined the fundamental fairness of his trial. Wilkinson. The Court reached this conclusion because it determined that Hinkel and Gamache were materially similar to Perez’s case, and both of those prior decisions held that the defendant was entitled to an entrapment instruction. Perez’s substantial rights were affected because had the instruction been given, it was reasonably probable that he would’ve been acquitted, the Court stated.

Accordingly, the Court vacated Perez’s conviction and remanded for a new trial. See: United States v. Perez-Rodriguez, 13 F.4th 1 (1st Cir. 2021).

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