In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2267
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ANNY W. O RR,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:06-cr-20074—Michael P. McCuskey, Chief Judge.
A RGUED O CTOBER 9, 2009—D ECIDED S EPTEMBER 27, 2010
Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. In various conversations
online and by telephone, Danny W. Orr attempted to con-
vince a woman he met online to move to Michigan with
her three- and five-year-old daughters for the purpose
of “training” them to become sexual “slaves.” The
woman eventually agreed, and Orr purchased train
tickets for her and the two children. Unbeknownst to
Orr, however, the “woman” with whom he was com-
2 No. 08-2267
municating online was actually a male police officer
conducting an undercover investigation into internet
child exploitation. Orr was charged with attempting to
persuade or induce a minor to travel in interstate com-
merce to engage in sexual activity and using a facility
of interstate commerce to do so, in violation of 18 U.S.C.
§ 2422(a) and (b). A jury found Orr guilty on both
counts. Orr appeals his conviction, arguing that the
district court should have granted his motion for ac-
quittal based on an entrapment defense that he never
raised during trial. Because we find that Orr cannot
establish either of the required elements for an entrap-
ment defense, we affirm.
I. BACKGROUND
In 2006, the Decatur Police Department initiated an
undercover sting operation to investigate internet crimes
against children. As part of this operation, Detective
Jeremy Welker created a fictional persona by the name
of Jennifer Spaden and established a Yahoo account
with the username “jenmomam.” Spaden’s profile de-
picted her as a 34-year-old woman from Decatur, Illinois,
who had two daughters aged three and five. Using
the profile, Welker entered an online chat room called
“Fetishes”, which allowed others in the room to see
Spaden’s screen name, access her profile, and send her
No. 08-2267 3
instant messages. Shortly after Spaden 1 entered the chat
room, Orr, using the screen name “master_corps1”, sent
her an instant message saying, “Are you training
your girls, Jenn?” Orr went on to describe how he had
been “training” his 12-year-old stepdaughter to perform
sexual acts since the age of four. He also discussed in
sexually explicit terms the various types of “training”
Spaden’s daughters could engage in at their young age.
The next day, Orr initiated another conversation
with Spaden in the Fetishes chat room. Again, he raised
the issue of training Spaden’s daughters and suggested
that Spaden come visit him in Michigan for a vacation.
Orr said that Spaden “might like it and want to stay” and
that he “could help train the girls too.” Spaden said
that she did not have very much money, to which Orr
replied that he could help her relocate to Port Huron,
Michigan, including an offer to buy a house for Spaden
and her daughters. Orr also sent Spaden seven images
of young girls engaging in sexual acts. According to Orr,
the girls in the pictures had been trained “at a very
young age.” Orr claimed that he had trained two of
the girls in the pictures when they were six and eight
years old.
In subsequent conversations, Orr continued to press
Spaden about her potential visit to Michigan. At one
point, Spaden said that she was interested in visiting
1
The opinion will generally refer to Jennifer Spaden, the
fictional character, and not the officers who were imper-
sonating her online.
4 No. 08-2267
but did not know how she would get there. Orr responded,
“I will get you here.” Spaden then asked, “How will me
and the girls get there though?”, and Orr replied,
“I would get you bus or train tickets or come and get
you.” Orr then reiterated his interest in training the girls,
and when asked for details about what the training
would include, explained in explicit terms that he would
teach them to perform and receive oral sex. He also
suggested that Spaden engage in sexual acts with him
while the girls watched. As the conversation continued,
Spaden asked Orr if he was “just saying all of this,” to
which Orr said “no. . . . for real[,] I want you and
the girls.” Orr also told Spaden that, when she and her
daughters moved to Michigan, she should not register
the five-year-old for school; instead, Orr suggested that
he could home-school the children so that they
would not inadvertently reveal to anyone that they
were “training as slaves.” Orr then asked to speak to
Spaden by telephone, to which she agreed and gave
him her telephone number. Detective Janette Carlton
posed as Spaden during the call. According to Carlton,
Orr said that he wanted Spaden to move to Michigan
with her children so that he could train them to be
sex objects.
Spaden and Orr continued to talk online and on the
telephone over the next few weeks. The topics of dis-
cussion ranged from sex to innocuous subjects like
Spaden’s dislike of Decatur and how she found it to be
boring. During one conversation, Spaden suggested
that Orr drive to Decatur and take her back to Port
No. 08-2267 5
Huron so they could look at houses together while her
cousin stayed with her daughters. Orr suggested that
Spaden take a bus instead. Orr and Spaden eventually
agreed that Orr would drive to Decatur on Labor Day,
stay two days, and then drive Spaden back to Port Hu-
ron. Orr also volunteered to help Spaden bathe the
girls after he arrived in Decatur. Orr later said that
they would have “lots of fun” and “a lot more fun”
when the girls started training after Spaden got settled
in Michigan.
Two days before Orr was supposed to leave Port Huron,
Orr told Spaden that he was unable to make the drive
but offered to pay for her round-trip train ticket. Spaden
asked if she should bring her daughters with her, to
which Orr responded, “Sure.” The next day, Orr told
Spaden in an online chat that he wanted to research
the cost of train tickets for Spaden and her daughters
to visit him. Orr expressed interest in also spending
time alone with Spaden, and Spaden inquired about what
they would do if her daughters accompanied her. Orr
asked if Spaden preferred that her daughters not see
them together yet, and Spaden stated that she was “fine
with either.” Orr then said, “ok if you[’re] fine with it then
bring them.” He again mentioned the possibility of en-
gaging them in sexual acts during this trip and after
their permanent move to Michigan. Spaden said that she
was “fine with either,” and Orr responded, “bring them
then.” On September 5, 2006, Orr used his credit card
to purchase train tickets from Amtrak in the names of
Spaden and her daughters for travel from Decatur to
Port Huron on September 11. He also sent Spaden an
6 No. 08-2267
email saying that he had reserved a hotel room for
their stay.
On the day of the trip, officers from the Decatur
Police Department arrested Orr and executed a search
warrant for his house. There, they found Orr’s computer,
which contained archived chats between Orr and
Spaden, as well as the images of child pornography that
Orr sent to Spaden. Orr was charged with attempting
to persuade, induce, entice, and coerce a minor to travel
in interstate commerce to engage in sexual activity, in
violation of 18 U.S.C. § 2422(a), and with using a facility
of interstate commerce to so attempt, in violation of
18 U.S.C. § 2422(b).
At trial, Orr did not present any witnesses in his
defense, nor did he mention entrapment. He simply
requested a jury instruction that stated, “The defendant
maintains that he did not intend to actually engage in
the sexual activity that he wrote or talked about.”
The government objected on the grounds that the jury
instructions already included an instruction on the def-
inition of “attempt,” which required proof of the defen-
dant’s intent to commit the offense. The district court
denied Orr’s proposed instruction. The jury found Orr
guilty on both counts. Waiving argument, Orr moved
for a judgment of acquittal, which the district court
denied. He now appeals, arguing that the district court
should have granted his motion for acquittal based on
the defense of entrapment, which he raises for the first
time on appeal. Orr does not raise any other challenge
to his conviction.
No. 08-2267 7
II. ANALYSIS
Orr’s failure to assert the entrapment defense during
trial constitutes forfeiture, so our review is limited to a
search for plain error. See Fed. R. Crim. P. 52(b);
United States v. Doyle, 121 F.3d 1078, 1089 (7th Cir. 1997)
(“When a right is waived, it is not reviewable, even for
plain error. In contrast, a right that is forfeited may be
reviewed under the plain error standard set forth in
Rule 52(b) . . . .”) (citation omitted). Plain error is a
rigorous standard under which reversal is only allowed
if “the error [ ] causes a miscarriage of justice, in the sense
of seriously affecting the fairness, integrity or public
reputation of judicial proceedings.” United States v.
Patterson, 241 F.3d 912, 913 (7th Cir. 2001) (citation and
internal quotation marks omitted). And of course, where
there is no error at all, plain error cannot be found.
United States v. Ross, 77 F.3d 1525, 1537 (7th Cir. 1996).
Such is the case here. The district court did not err
by denying Orr’s motion to acquit based on a defense he
never asserted at trial, particularly when the defense
would not have been supported by the facts presented
at trial.
As a preliminary matter, we reject Orr’s argument
that “the district court should have made the entrap-
ment defense available to Mr. Orr.” Such an argument
ignores the burden of persuasion in affirmative de-
fenses, which is placed squarely on the shoulders of
the defendant claiming entrapment. See United States
v. Blassingame, 197 F.3d 271, 279 n.2 (7th Cir. 1999)
(“[E]ntrapment is an affirmative defense and it is well
established that some minimal showing is required to
8 No. 08-2267
entitle a defendant to maintain an affirmative defense.”);
United States v. Jumah, 493 F.3d 868, 873 (7th Cir. 2007)
(“[W]hen a statute is silent on the question of affirma-
tive defenses and when the affirmative defense
does not negate an essential element of the offense, we
must presume that the common law rule that places
the burden of persuasion on the defendant reflects
the intent of Congress.”). It was Orr’s responsibility to
raise the entrapment defense, as “it is most definitely
not the responsibility of the prosecutor or the judge to
do the work of defense counsel.” United States v. Gomer,
764 F.2d 1221, 1227 (7th Cir. 1985) (citation and inter-
nal quotation marks omitted).
We conclude that any attempt by Orr to assert entrap-
ment during trial would have been futile. A successful
entrapment defense requires proof of two elements:
(1) government inducement of the crime; and (2) lack of
a defendant’s predisposition to engage in criminal con-
duct. United States v. King, 75 F.3d 1217, 1223 (7th Cir.
1996) (citation omitted). A defendant must proffer suffi-
cient evidence of both elements before the defense may
be asserted. United States v. Millet, 510 F.3d 668, 675
(7th Cir. 2007).
A. Government Inducement
As to government inducement, Orr’s central argument
is that, although he might have initially been willing to
engage in certain criminal acts, he “changed his attitude
at one point along the way,” after which the police
officers began to “entreat Orr with pleas based on sym-
No. 08-2267 9
pathy in order to induce him” to commit the charged
offense. But this argument suffers from a fatal flaw: the
record contains no indication that Orr changed his
mind or that his original desire to help “train” Spaden’s
daughters ebbed at any point. To the contrary, it was Orr
that initiated the discussions about “training” Spaden’s
daughters and continued to do so until the time of
his arrest. Spaden’s Yahoo profile did not contain any
sexual information. Yet, without provocation, Orr
initiated contact with Spaden, and his first comment to
her was an inquiry about sexually abusing her children.
As their internet relationship progressed, Orr continued
to press forward with his plan, as demonstrated by his
repeated affirmations that Spaden should bring her
daughters on the Michigan trip, even when presented
with the express option that they not come with her.
When first asked if Spaden should bring her daughters,
Orr responded, “Sure.” Later, when they were con-
firming the details of the trip, Spaden told Orr that she
was “fine” with either allowing the girls to see them
together or not, and Orr twice told her to “bring them.”
All of these statements evince Orr’s continued in-
terest in abusing Spaden’s daughters, particularly in
light of the fact that the entire purpose of Spaden’s visit
to Michigan was to search for a home where she and
her daughters could live permanently—the final step
in Orr’s plan to have full access to the children he
planned to abuse.2
2
Contrary to Orr’s assertions, the record does not indicate
that he “expressed reservations” about Spaden bringing her
(continued...)
10 No. 08-2267
Orr also contends that the officers made “repeated
entreaties for Orr to reconsider and to carry out the
criminal acts in which he had lost interest.” Orr is appar-
ently referring to Spaden’s statements about disliking
Decatur, but these statements do not rise to the level
of “extraordinary inducement” required to maintain an
entrapment defense. See United States v. Haddad, 462
F.3d 783, 790 (7th Cir. 2006) (requiring defendant to
prove that government inducement was “extraordinary
inducement, the sort of promise that would blind the
ordinary person to his legal duties”) (citation and
internal quotation marks omitted). Where, as here, the
government simply invites the defendant to participate
in the crime and does not “employ[ ] any pressure tactics
or use[ ] any other type of coercion” to induce the defen-
(...continued)
daughters on the Michigan trip. Orr emphasizes that, when
asked whether Spaden should bring her daughters with her,
Orr said, “I don’t mind either way.” Even if this statement
did indicate hesitation—which we do not believe it does—
it would not entitle Orr to an entrapment defense, as a “defen-
dant is not entitled to offer an entrapment defense solely
by asserting that he hesitated when offered the opportunity
to commit the crime.” United States v. Haddad, 462 F.3d 783, 790
(7th Cir. 2006). Further, when viewed in the context of other
statements made during the same conversation (in which
Orr referenced training the girls to perform oral sex and
mentioned his concern that Spaden would change her mind
about the trip), Orr’s comment does not indicate any reserva-
tion or an abandonment of his plan to sexually abuse the
children.
No. 08-2267 11
dant, a defendant is not entitled to an entrapment
defense. United States v. Akinsanya, 53 F.3d 852, 858 (7th
Cir. 1995); see Haddad, 462 F.3d at 790 (“If a person
takes advantage of a simple, ordinary opportunity to
commit a crime—‘not an extraordinary opportunity, the
sort of thing that might entice an otherwise law-abiding
person’—then the person is not entrapped.”). That Spaden
commented more than once about her desire to leave
Decatur does not transform an otherwise common com-
plaint into an extraordinary one. See Akinsanya, 53 F.3d
at 858 (“[P]ersistence is not alone sufficient to carry
the case beyond an ordinary opportunity.”) (citation
and internal quotation marks omitted). To the extent that
Orr argues that Spaden’s suggestion that he come pick
her up from Decatur constitutes inducement, his argu-
ment is also meritless. It is well-settled that, absent extra-
ordinary promises, making a defendant a criminal offer
does not constitute government inducement. Haddad,
462 F.3d at 790.
B. Predisposition
Predisposition, the “principal element” of the entrap-
ment defense, centers on “whether the defendant was
an ‘unwary innocent’ or, instead, an ‘unwary criminal’
who readily availed himself of the opportunity to perpe-
trate the crime.” Mathews v. United States, 485 U.S. 58,
63 (1988). We consider several factors in assessing
whether a defendant was predisposed to commit the
charged offense: (1) the defendant’s character or reputa-
tion; (2) whether the government initially suggested the
12 No. 08-2267
criminal activity; (3) whether the defendant engaged in
the criminal activity for profit; (4) whether the defendant
evidenced a reluctance to commit the offense that was
overcome by government persuasion; and (5) the nature
of the inducement or persuasion by the government.
Millet, 510 F.3d at 676.
Here, all factors indicate that Orr was predisposed to
commit the charged offense. As noted earlier, Orr was
the one that first suggested training Spaden’s daughters,
and he encouraged Spaden to acclimate the girls to
sexual acts. Orr also stated repeatedly that he wanted
Spaden and her daughters to join him in Michigan,
where he would train the girls to be sex slaves. And
even beyond his suggestions about training Spaden’s
children, Orr boasted about having trained his 12-year-
old stepdaughter since she was four years old (in-
cluding penetration at age six), as well as two of the girls
depicted in the pornographic images he sent to Spaden.
These actions do not fit the profile of an “unwary inno-
cent.” To the contrary, Orr’s explicit statements about
his desire to sexually abuse Spaden’s daughters coupled
with his bragging about molesting other children is
more than sufficient to show that he was predisposed to
commit the charged offense. Where, as here, “the defen-
dant was simply provided with the opportunity to com-
mit a crime, the entrapment defense is of little use be-
cause the ready commission of the criminal act amply dem-
onstrates the defendant’s predisposition.” Akinsanya,
53 F.3d at 858 (emphasis in original).
No. 08-2267 13
III. CONCLUSION
Accordingly, we A FFIRM the judgment of the district
court.
9-27-10