United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3047
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Todd Wesley Myers, *
*
Appellant. *
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Submitted: May 12, 2009
Filed: August 10, 2009
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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Todd Wesley Myers was convicted of knowingly attempting to transfer obscene
material to a person under the age of sixteen, in violation of 18 U.S.C. § 1470, and
knowingly attempting to induce a child to engage in criminal sexual activities, in
violation of 18 U.S.C. § 2422(b). He appeals, arguing that he was entrapped as a
matter of law, that the evidence was insufficient to support his conviction, and that the
district court1 erred in admitting evidence. We affirm.
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
I.
In October 2006, Chief Richard Friend of the Shannon Hills, Arkansas, Police
Department was involved in an undercover investigation to locate sexual predators on
the Internet. Using the pseudonym “Stephanie” and screen name
“stephanieboyd1994,” he entered an Arkansas romance chat room on Thursday,
October 5, and was contacted by Myers, who was then a twenty-four year-old male
residing in Alma, Arkansas. Stephanie identified herself as a fourteen-year-old female
living in Little Rock, Arkansas. Myers asked if he was too old for her and whether
she had a boyfriend, to which Stephanie replied no. In response to Myers’s request
for a photo, Stephanie sent a picture of a young female in a bikini. She then asked
Myers how far he was from Little Rock and whether he was looking to hook up, to
which Myers said “now do I really need to answer that. look at you. you are a
goddess and seem really sweet.”2 Myers again asked if he was too old for Stephanie,
and she responded “nah . . . just promise not to get me prego . . . thats all i worry
about.” During the remaining few minutes of the conversation, Myers initiated a “20
question like game” in which he queried Stephanie about her undergarments. Both
parties agreed to meet online the next day.
Around 9:30 a.m. the following morning, Myers sent several instant messages
to Stephanie without any reply. When Chief Friend responded to Myers later that day,
the stephanieboyd1994 screen name had changed to “Kim Wilson.” Chief Friend
explained that this occurred because he accidentally linked the stephanieboyd1994
screen name with the profile of another persona that he used for his investigation.
2
We have avoided making any edits that would alter the meaning of the
electronic communication; thus, the quoted language includes a number of
grammatical and typographical errors.
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Myers, however, did not appear to notice the distinction.3 He referenced the twenty
question game the two had played the day before and asked Kim about her underwear.
Myers also reintroduced the idea of meeting:
Todd Myers: so i can come down like next Tuesday if you wanna see me
Kim Wilson: k
Kim Wilson: what time?
Todd Myers: well is there anyway you can be home alone all day?
Kim Wilson: i can skip [school] if your 4 real
Todd Myers: yes I am
Todd Myers: will u be home all day alone?
Kim Wilson: can be
Kim then asked Myers what he wanted to do when they met—“oral? . . . or more?”
Myers answered “get totally naked and lick food off one another if you are down with
it,” and Kim replied “HELL YEAH!” The conversation progressed to more graphic
details of the anticipated sexual encounter, and Kim asserted that Myers had to bring
protection. Kim also brought up the subject of her age at two different points in the
conversation:
Kim Wilson: you not messed up about the age?
...
Todd Myers: are u messed up about the age?
Kim Wilson: no
Kim Wilson: r u?
Todd Myers: when two people like each other age shouldn’t be a factor
...
Kim Wilson: ur sure the age and distance isnt bad?
...
3
Both Myers and Chief Friend later explained that such name changes can occur
after a person adds another individual as a “friend,” as Myers did in this case with
stephanieboyd1994.
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Todd Myers: well you act older and as long as the age don’t bother you,
it don’t bother me
At the end of their conversation, Kim asked if Myers planned to come the next week
and Myers suggested he could pick her up from school or drop by her house after her
mother had left. Myers and Kim made plans to talk again on Monday.
Myers exchanged offline messages with Kim on Monday, October 9, but did
not have an extended conversation until Tuesday morning. Kim contacted Myers and
asked “what happened to u?” Myers responded that his mother had suddenly become
ill and he had been busy caring for his younger brother, but he offered “You give me
a day like Thursday maybe and I will be there ok?” Several minutes later, Myers
asked Kim if she wanted to see something and proceeded to send a four-minute video
of himself masturbating his erect penis, which formed the basis of the government’s
charge for transferring obscene material. Later in the chat, Myers and Kim once again
discussed the possibility of meeting. Myers inquired if they would be alone all day
and Kim asserted that she would skip school and call as soon as her mother had left
the house. Kim again broached the subject of her age:
Kim Wilson: are you sure the age thing isnt a big deal?
...
Todd Myers: are you sure it isn’t a big deal?
Kim Wilson: I’m not messed up about it
...
Kim Wilson: but you might be
Todd Myers: why?
Kim Wilson: I mean your like 10 years older than me
Kim Wilson: I don’t want you to get bored with me
Todd Myers: i like you
Kim Wilson: well . . . i like you too
Todd Myers: and I wanna cuddle with you all day long
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The next day, October 11, Myers drove from Alma to Shannon Hills to meet
Kim. Along the way, he sent and received a number of text messages concerning
directions, what Kim was wearing, and what she would do upon his arrival. Myers
was apprehended at the designated meeting place with two boxes of condoms and a
digital camera in the front seat of his truck. When asked how old he thought the girl
was, Myers stated “I thought she said seventeen, but just fourteen.”
At trial, Myers argued that he did not believe the person with whom he was
chatting was a minor, and he sought to raise the affirmative defense of entrapment.
The district court determined that Myers had presented sufficient evidence of
government inducement to warrant an entrapment jury instruction. The government
argued that even if Myers had been induced to act, his entrapment defense should fail
because he was predisposed to commit the offenses. Myers’s ex-wife testified for the
government that Myers had previously engaged in sexually explicit online
conversations and had a pattern of asking intimate questions about female attire. After
the jury returned a guilty verdict on both counts, Myers filed an unsuccessful motion
for judgment of acquittal, arguing that the evidence was insufficient and that he was
entrapped as a matter of law.
II.
Myers first argues that he was entrapped as a matter of law. The defense of
entrapment recognizes that “[l]aw enforcement officers go too far when they implant
in the mind of an innocent person the disposition to commit the alleged offense and
induce its commission in order that they may prosecute.” Jacobson v. United States,
503 U.S. 540, 553 (1992) (internal quotation omitted). A valid entrapment defense
involves two interrelated elements: government inducement of criminal conduct and
an absence of criminal predisposition on the part of the defendant. Mathews v. United
States, 485 U.S. 58, 63 (1988). Inducement focuses on the government’s actions,
whereas predisposition “focuses upon whether the defendant was an ‘unwary
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innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the
opportunity to perpetrate the crime.” Id. The two inquiries are often closely linked,
because the need for greater inducement may suggest that the defendant was not
predisposed to commit the crime; and conversely, a ready response to minimal
inducement indicates criminal predisposition. United States v. Poehlman, 217 F.3d
692, 698 (9th Cir. 2000). Because the entrapment defense requires factual
determinations about government conduct and its likely effect upon a defendant,
“[t]he question of entrapment is generally one for the jury, rather than for the court.”
Mathews, 485 U.S. at 63. Where the evidence is in conflict, we leave the jury’s
verdict undisturbed. United States v. Pardue, 983 F.2d 843, 847 (8th Cir. 1993) (per
curiam). We will conclude that the defendant was entrapped as a matter of law only
if the evidence clearly shows that “the government agent developed the criminal plan
and that the defendant was not predisposed to commit the crime independent of the
government’s activities.” United States v. Kurkowski, 281 F.3d 699, 701 (8th Cir.
2002).
The starting point for our analysis is whether Myers has established that the
government induced him to violate the law. Myers looks past this threshold issue,
contending that his burden to show inducement was met because the district court
determined that his entrapment defense warranted a jury instruction.4
When, as here, the government has not conceded the issue of inducement, the
defendant’s burden ought not be cast aside lightly. See United States v. Brand, 467
F.3d 179, 190 (2d Cir. 2006). Inducement is government conduct that creates a
substantial risk that an otherwise law-abiding person will commit a criminal offense.
4
Myers cites Jacobson and United States v. Brooks, 215 F.3d 842 (8th Cir.
2000), for the proposition that our analysis should proceed directly to the question of
predisposition. In Jacobson, the government conceded the issue of inducement, see
503 U.S. at 549 n.2; and in Brooks, inducement was so obvious that it did not merit
discussion, see 215 F.3d at 845.
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United States v. Stanton, 973 F.2d 608, 610 (8th Cir. 1992). “Inducement may take
different forms, including pressure, assurances that a person is not doing anything
wrong, persuasion, fraudulent representations, threats, coercive tactics, harassment,
promises of reward, or pleas based on need, sympathy, or friendship.” Id.
Inducement, however, must consist of something more than an opportunity to break
the law. See id. And it is well settled that the government may use artifice, stratagem,
and undercover agents in its pursuit of criminals. Jacobson, 503 U.S. at 548.
The following factors are pertinent to the discussion: (1) whether the
government made the initial contact; (2) the effect of the photo that the government
sent to Myers; (3) whether the government introduced the topics of sex and meeting
in person; and (4) the extent to which the government influenced Myers’s behavior
by portraying Stephanie and Kim as sexually precocious teenagers. There was some
dispute about who made the first contact in this case. Although the chat transcripts
admitted into evidence indicated that Chief Friend first contacted Myers, Chief Friend
testified that, in compliance with his department’s policy of never doing so, he had not
initiated the chat with Myers. He offered as an explanation for why Myers’s name did
not appear first the fact that Myers’s first message was an emotion icon that did not
transfer when the chats were copied into an electronic document. Faced with this
conflicting evidence, the jury could have credited Chief Friend’s testimony about who
sought out whom. But in any event, Myers “cannot establish inducement merely by
showing that the government solicited, requested or approached him to engage in
criminal conduct.” United States v. Pinque, 234 F.3d 374, 378-79 (8th Cir. 2000)
(internal quotation omitted).
Although the picture of the young, bikini-clad female is not included in the
record that was submitted to us, the parties stipulated at trial that it was taken when
the person depicted “was either seventeen or eighteen years of age.” As set forth
above, Chief Friend introduced the idea of a physical meeting and portrayed both
Stephanie and Kim as being very desirous of sexual activity.
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Whatever else might be said about the government’s efforts in this case, we
conclude that they do not approach the level and type of inducement present in the
cases on which Myers relies. In Jacobson, for example, the government conceded
inducement after two-and-a-half-years of “repeated efforts by two Government
agencies, through five fictitious organizations and a bogus pen pal,” to explore the
defendant’s willingness to purchase child pornography. 503 U.S. at 543. The
government’s actions in Jacobson were particularly pernicious because they not only
aroused a sexual interest in the contraband but also attempted to persuade the
defendant that obtaining and reading illegal materials would advance a necessary fight
against censorship and infringement of individual rights. Id. at 552. Likewise, in
Poehlman the Ninth Circuit held that the government’s use of “friendship, sympathy
and psychological pressure” induced the defendant to attempt to engage in sex acts
with a minor. 217 F.3d at 698. That case involved a government agent who posed as
a “mother” looking for a “special man teacher” for her three children, but not herself.
The defendant initially showed no interest in pedophilia but was persuaded to
overcome any inhibitions over the course of a six-month epistolary relationship with
the mother, who deftly used the promise of companionship, the threat of rejection, and
a host of other manipulative tricks to develop the defendant’s interest in her children.
Id. at 698-703. And in Brooks, the inducement prong was found to be satisfied when
a confidential informant, acting at the government’s behest, turned a heroin addict into
a drug dealer by threatening to cut off his heroin supply if he did not resell a portion
of his drugs. 215 F.3d at 844-45. No such coercive elements are present in this case.
Cf. United States v. Pardue, 983 F.2d 835, 841 (8th Cir. 1993) (reversing the district
court’s finding of entrapment as a matter of law because there was no evidence of
coercion or duress and no prolonged effort to induce the defendant to commit
attempted murder).
The government did not threaten, coerce, or psychologically manipulate Myers.
The promises made to Myers related only to the gratification he would receive through
a sexual encounter with an enthusiastic minor. Whether this direct appeal to Myers’s
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prurient interest was so strong that it crossed the line between mere opportunity and
inducement is a question we need not decide because we are satisfied that the
government met its burden of showing predisposition. The alacrity with which Myers
responded to the criminal opportunity amply demonstrated his willingness to violate
the law.5 Myers argues that this is an insufficient basis to establish his predisposition
to engage in sexual acts with minors, contending that the government was required to
produce evidence that he acted on those inclinations before the government entered
the picture. In support of this view, he cites the Court’s observation in Jacobson that
“the prosecution must prove beyond reasonable doubt that the defendant was disposed
to commit the criminal act prior to first being approached by Government agents.”
503 U.S. at 549. But that statement must be understood in light of the facts of that
case and the Court’s subsequent observation that the entrapment defense would have
failed if the defendant had “promptly availed himself of [the] criminal opportunity.”
Id. at 550.
In cases like Jacobson, where a defendant commits a crime only after a lengthy
period of government involvement, the fact that the defendant eventually became
amenable to criminal activity does not establish the requisite predisposition. This is
due to the difficulty of ascertaining whether the response is purely the defendant’s or
a product of government influence. But when a defendant responds immediately and
enthusiastically to his first opportunity to commit a crime, without any period of
government prodding, his criminal disposition is readily apparent. We recognized this
in one of our earliest cases applying Jacobson. See United States v. LaChapelle, 969
F.2d 632, 635 (8th Cir. 1992) (holding that the defendant was independently
5
We agree with Myers that his ex-wife’s testimony concerning his online
proclivities and tendency to inquire about female intimate attire is insufficient to
establish a predisposition to engage in sex acts with minors. See Jacobson, 503 U.S.
at 551 (noting that evidence of predisposition to do an act that is legal is not, by itself,
sufficient to show predisposition to commit a crime, because there is a common
understanding that people will obey the law).
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predisposed to purchase child pornography because of his immediate acceptance of
the government’s offer); see also Brand, 467 F.3d at 192-93 (recognizing that a
defendant’s “ready response” to government inducement establishes predisposition);
cf. Poehlman, 217 F.3d at 703 (concluding that the defendant’s eventual response did
not establish predisposition because the government’s sustained inducement may have
made him willing to break the law).
One searches the record in vain to find a moment when Myers resisted or
hesitated when confronted with the opportunity to have a sexual encounter with a
minor. Myers met Stephanie in a romance chat room and quickly learned that she was
fourteen years old. Nevertheless, he showed no reluctance to engage in sexually
explicit conversation and asked about her undergarments. Myers initiated the second
chat—in which Chief Friend first appeared under the pseudonym “Kim”—raised the
subject of a physical meeting, and steered the discussion toward sex. Kim
subsequently introduced the subject of her age on a number of occasions, but Myers
did not appear to give the issue any serious consideration. Further, without any
suggestion or encouragement from Kim, Myers sent a four-minute video of himself
masturbating. These actions indicate that Myers “readily availed himself of the
opportunity to perpetrate [a] crime.” Mathews, 485 U.S. at 63. A reasonable jury
therefore could have concluded that, even if induced, Myers was predisposed to
violate the law. Accordingly, the district court did not err in finding that Myers was
not entrapped as a matter of law.
III.
Myers also argues that the evidence was insufficient to support his conviction
for enticing a minor to engage in criminal sexual activity. We review the sufficiency
of the evidence de novo, viewing the evidence in the light most favorable to the jury’s
verdict. United States v. Molsbarger, 551 F.3d 809, 812 (8th Cir. 2009). The verdict
will be upheld if there is any interpretation of the evidence that could lead a
reasonable jury to find the defendant guilty beyond a reasonable doubt. Id.
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Under 18 U.S.C. § 2422(b), a person may be convicted if he “knowingly
persuades, induces, entices, or coerces” a minor to engage in criminal sexual activity
or attempts to do so. Myers’s chief argument is that no reasonable jury could find that
he enticed a minor because it was the government that was doing the inducing. A
finding of government inducement, however, does not preclude conviction under §
2422(b). Brand, 467 F.3d at 204 n.21; see also United States v. Blazek, 431 F.3d
1104, 1107 (8th Cir. 2005) (rejecting the defendant’s contention that the evidence of
enticement was insufficient because the government agent enticed him to commit the
offense). Even if the jury believed that the government induced Myers to act, there
was sufficient evidence that he attempted to entice a minor to engage in criminal
sexual activity.
A reasonable jury could have found that Myers knew he was in a romance chat
room and believed he was communicating with a fourteen-year-old girl. Within
minutes of meeting a person he believed to be a minor, Myers asked if she had a
boyfriend and what type of underwear she was wearing. Later, he talked about
cuddling, told her that he wanted to be in a relationship, and assured her that “when
two people like each other age shouldn’t be a factor.” Although the government made
the initial, oblique reference to a physical meeting, Myers reintroduced the idea in
subsequent conversations and asked if there was any way Kim could be home alone
all day. He suggested picking Kim up from school and encouraged her to evade her
mother for the purposes of having a sexual liaison. Myers took a substantial step
toward completion of the crime by driving two hours to meet Kim while she was
purportedly home alone, and the police found two boxes of condoms and a digital
camera in the front seat of his truck. That Stephanie or Kim acted as though they were
ready and willing to engage in various sex acts does not vitiate Myers’s attempted
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enticement. Accordingly, a reasonable jury could have found that Myers intended to
entice a minor to engage in illegal sex.6
IV.
Finally, Myers contends that the district court erred in admitting a transcript of
the internet chats. Because Myers did not object to the admission of this evidence, we
review only for plain error. See United States v. Westbrook, 896 F.2d 330, 334 (8th
Cir. 1990). Chief Friend testified that the chats were cut and pasted into word
processing files, and Myers argues that the resulting transcripts were untrustworthy
because they could have easily been altered. Myers also points out that at least one
possible inaccuracy was identified at trial, insofar as the transcripts appeared to
contradict Chief Friend’s testimony that Myers initiated contact.
Other courts have rejected the argument that cut and pasted transcripts of
internet chats are inherently untrustworthy and therefore inadmissible at trial. See,
e.g., United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007). Chief Friend
testified that the transcripts were accurate, and Myers used many favorable portions
of the transcripts in his own defense, as he has continued to do on appeal. To the
extent that there were any inconsistencies between trial testimony and the transcripts,
Chief Friend offered a plausible explanation for the discrepancies and the jury heard
6
In conjunction with his argument on the sufficiency of the evidence, Myers
argues that Jury Instruction No. 18 could have misled the jury because it stated that
the government did not need to prove that Myers was communicating with a minor,
only that he believed he was doing so. Myers argues that the jury could have
misinterpreted the instruction to allow conviction solely on the basis that he knew he
was communicating with a minor—without requiring any finding of enticement.
Myers did not object to the language in Instruction No. 18, and it suffices to say it was
not plain error to give the instruction. See United States v. DeRosier, 501 F.3d 888,
898 (8th Cir. 2007) (standard of review).
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arguments from both sides. Accordingly, the district court did not err, and certainly
did not plainly err, in admitting the transcripts.
The judgment is affirmed.
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