United States Court of Appeals
For the First Circuit
No. 19-1538
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL PÉREZ-RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Kayatta, Lipez, and Barron, Circuit Judges.
Linda A. Backiel for appellant.
Julia Meconiates, Assistant United States Attorney, with whom
W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-
Almonte, Assistant United States Attorney, were on brief, for
appellee.
September 2, 2021
LIPEZ, Circuit Judge. Rafael Pérez-Rodríguez was
convicted by a jury of attempted enticement of a minor for unlawful
sexual activity in violation of 18 U.S.C. § 2422(b). He was
apprehended through a sting operation in which a government agent
created a profile on an adults-only dating application posing as
a gay adult man, and, after being contacted by Pérez, then offered
to arrange a sexual encounter with his minor "boyfriend." Pérez
appeals on several grounds, including insufficiency of the
evidence and the denial of a jury instruction on the entrapment
defense. While we find Pérez's challenge to the sufficiency of
the evidence meritless, we conclude that the district court
committed plain error in failing to give the entrapment
instruction. We therefore vacate the conviction and remand for a
new trial.
I.
In 2015, Ryan Seig, a special agent with the child
exploitation unit of Homeland Security Investigations ("HSI"),
conducted a sting operation using the geosocial networking
application Grindr. Agent Seig testified that the purpose of the
application is "to talk and usually meet with someone else who
shares your interests." On cross-examination, he added "it's
social networking among homosexuals." Grindr describes itself as
"the largest social networking app for gay, bi, trans, and queer
people." About, Grindr, https://www.grindr.com/about/ (last
- 2 -
visited August 25, 2021). Grindr allows users to create profiles
and to exchange messages with other users with profiles in their
geographic area. Per Agent Seig's testimony, "[a] profile is a
small blurb about what you are looking for, possibly what you look
like, and sort of a general description of who you are and what
you want." Grindr requires users to be eighteen years of age or
older and does not allow individuals to use the platform to seek
sexual encounters with minors.
Agent Seig created a Grindr profile under the name "Dave
W." He wrote in his profile, "Looking for young fun or to share
my young fun." He testified that he chose this text as a "veiled"
reference to a sexual encounter with a minor, explaining that
"someone who was familiar with the way pedophiles communicate on
the internet could read this and know what it meant." The profile
also described "Dave W." as "Muscular, White, Single."
On December 30, 2015, the Dave undercover profile
received a message from a profile with the name "Mirando," a
profile created by Pérez. Dave and "Mirando" exchanged messages
on Grindr, and then moved to text messaging. The precise language
of the messages is crucial to this case.1 Thus, we reproduce key
parts of the exchange in full. The conversation began as follows:
1The messages were primarily in Spanish. We draw from the
certified English translations that were admitted into evidence.
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Pérez: Hello what are you doing?
Dave: Hey what's up
Pérez: Let's see you
Dave: Cool, do you like really young guys?
Pérez: Yes
Age?
I started at 8
Dave: Me? 35, but my boyfriend is young
Pérez: Hahhaha Okk
How old is he?
What does your boyfriend like?
Dave: He likes everything :)
He is very young, what age do you like?
Pérez: The younger the better
I don't discriminate
I started at 8 hehehhe
So you tell me
What does he like to do?
We are close, we can come up with some fun
From there up I do it all
Dave: Do you understand English? I speak only a little
Spanish
My boyfriend is 11 years old. Do you want to play
with him?
Pérez: Mmmm yessss
Where is he?
I speak little only a little English?
Share pics??
You tell me when and where???
Do you prefer to call?
Yes, I want to play
Dave: We live in[] San Juan.
We're free next week.
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Pérez: Ok
Have whatsapp?
Send me pics?
Can you now?
Dave: Yes I'm busy with a party
Pérez: Ok, but you are close
Can you get away?
Can you*
Dave: Last night, no haha :)
Do you want anal with him or oral?
Pérez: Everything
I want the 3 of us to play
You for a while and me for a while. You like?
Dave: Me too
Yes
Pérez: Send me something to see you playing with him
I like taboo
Dave: Me too :)
Pérez: Have a pic?
Are you with him at the party
Dave: I don't want to send a pic because I won't know
who you are until we meet
Yes, he is here
You can take pics if this happens. Just no faces
I don't have whatsapp
But I can text
Pérez: Text is better
Pérez then sent two photos of himself to "Dave," and Dave provided
Pérez with a telephone number.
The next day, December 31, Pérez sent Dave a text message
to continue the conversation. He again expressed sexual interest
in "Dave's" minor "boyfriend." Dave messaged, "we're going to
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have a lot of fun, friend. :) . . . Him you and I[.]" Pérez
requested pictures of "Dave." Pérez asked Dave questions about
his relationship with the minor. ("How did you get him?" and "How
long have you had him?").
On January 1, Pérez messaged Dave and said, "Happy New
Year." He again said, "I want your boyfriend." Pérez and Dave
discussed their availability for a meeting that week. They
exchanged messages about what Pérez wants to do during the sexual
encounter. Pérez asked several questions about how Dave met the
minor, what the minor's parents think, and whether "Dave's" family
knows about the minor. "Dave's" answers included "He's my friend"
and "I am a 'good influence.'"
On January 2, Dave initiated the conversation. He
writes, "Just saying hi. Very busy with family! Happy new
year ;)[.]" The following day, Dave and Pérez discussed meeting.
Pérez: Let's see each other tomorrow to get to know you
Dave: Ok, what time can you do it?
Pérez: Write me when you wake up
I get up early
Where should we meet?
Dave: Are we using your house or mine for the threesome?
Pérez: Yes. I live alone. But if it's at home, then it
should be in the afternoon
But I want to see you before to get to know you
and see what you want to do so that I'm
comfortable
Dave: I understand. Me too.
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Pérez: Ok
Dave: Where is a good place for us all to meet?
Pérez: Where should we meet
Dave: We can meet and then go to your house for sex with
all of us?
I can meet anywhere. It doesn't matter. We'll
talk in the morning when you know more concerning
your schedule
Pérez: Yes
Depends on what we talk about and we'll go
I am free. Write to me tomorrow.
Pérez then requested a picture of Dave again. He asked Dave
several more questions about his relationship with the minor. Dave
said that the minor is "excited, happy" about the planned sexual
encounter. They agreed to meet at Guaynabo Plaza. Pérez stated
"first I see you" and asked "Can you come alone?" Dave replied,
"I can leave him at my place and you can follow me there, ok?"
Pérez responded, "Yes."
The following morning, Monday, January 4, Dave started
the conversation again, initiating this exchange:
Dave: Can you meet at 3?
Pérez: Ok
Dave: Cool
Pérez: Ok
Dave: I spoke with him and he's excited :)
He's worrie[d] about what clothes to bring
LOL
What parking do you want to meet in?
Are you busy?
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Pérez: Hahahhahha
Go to Guaynabo Plaza and I'll tell you where
we'll meet
Remember that I want to talk to you first. I
need to feel safe.
Dave: Yes, me too, it's a good idea.
I am also scared.
Pérez: That's why I want to see you by yourself.
I would like to know you first.
Dave: Yes, he will be at my house
Pérez: Ok
Dave: Waiting with the XBOX and beers LOL
Pérez: What are you like, physically?
Mmmmm
I like beer
He doesn't get in trouble for drinking?
Dave: Like in my profile.
5'9" or 5'10". Brown hair.
Pérez: Gym body?
Dave: Yes, I lift weights 4-5 days a week
I am not fat
Pérez: And what's he like?
Dave: Skinny, like a young guy. He is Boricua, with
short hair.
Pérez: Ok
Dave: He likes soccer jerseys?
He's very intelligent and friendly
Pérez: Let's see one another now to talk and be horny
about what we're going to do.
- 8 -
The two men eventually agreed to meet at the Martinez Nadal train
station at 4 p.m.
At the appointed time, Agent Seig drove to the station
and parked his vehicle in the parking lot. Seig had informed other
members of his unit about the meeting, and several additional HSI
agents were also waiting in the parking lot. Pérez drove into the
parking lot, pulled up alongside Agent Seig's vehicle, and got out
of his car. HSI agents immediately arrested him.
On January 27, 2016, a grand jury returned an indictment
charging Pérez with one count of attempted enticement of a minor
in violation of 18 U.S.C. § 2422(b). Prior to commencement of the
jury trial, the parties submitted proposed jury instructions.
Pérez filed a separate ex parte request for an entrapment jury
instruction.
A two-day jury trial was held beginning on May 15, 2017.
The government's case primarily consisted of Agent Seig's
testimony and the transcripts of the Grindr and text messages.2
Pérez did not present any witnesses.3 At the close of the evidence,
2The government also presented testimony from two other HSI
agents present at the arrest. An AT&T security manager also
explained how he confirmed that the phone which sent the messages
belonged to Pérez.
3Pérez attempted to present character witnesses, but the
court excluded the testimony as impermissible under the Federal
Rules of Evidence because there was no pertinent character trait
associated with the crime charged.
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Pérez moved for acquittal under Rule 29. The district court denied
the motion. The parties participated in a charging conference,
which was not recorded. Nevertheless, the record indicates that
Pérez renewed his request for an entrapment jury instruction at
that conference because the district court denied the entrapment
instruction in a docket entry, stating, "The ruling is based on
the arguments presented by the government and defendant's response
during the charging conference in connection with predisposition.
In the end, the evidence presented at trial did not justify an
entrapment instruction." Before instructing the jury, the court
asked the parties if there were "any objections to the
instructions." Pérez did not raise any objections at that time.
After charging the jury, the district court did not invite
objections from the parties. Pérez did not raise any objection.
The jury deliberated for less than one hour and returned a guilty
verdict. On May 14, 2019, Pérez was sentenced to 151 months of
incarceration.
Pérez timely filed this appeal. In addition to
challenging the sufficiency of the evidence, he asserts that the
district court erred in rejecting his request for an entrapment
instruction.4
Pérez raises four additional claims of error: (1) inadequate
4
questioning during voir dire, (2) violations of the Jones Act, see
48 U.S.C. § 864 (requiring that all trial proceedings in the
- 10 -
II.
We review de novo the district court's denial of Pérez's
properly preserved claim that the evidence presented at trial was
insufficient to support the jury's verdict. See United States v.
Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019). In evaluating a
sufficiency of the evidence claim, "we examine the evidence, both
direct and circumstantial, in the light most favorable to the
prosecution and decide whether that evidence, including all
plausible inferences drawn therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged count or crime." United States v. Velázquez-
Aponte, 940 F.3d 785, 798 (1st Cir. 2019) (quoting United States
v. Díaz-Rosado, 857 F.3d 116, 120–21 (1st Cir. 2017)).
A. The Elements of the Offense
Pérez was found guilty of violating 18 U.S.C. § 2422(b),
which provides:
Whoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18
District of Puerto Rico be conducted in English), and the Court
Reporter Act, see 28 U.S.C. § 753(b) (requiring federal court
proceedings to be recorded verbatim), (3) improper opinion
testimony, and (4) improper exclusion of a character witness.
Except for some observations on the voir dire process, we do not
address the other issues raised given our conclusion that Pérez's
conviction must be vacated on the basis of the court's failure to
give an entrapment instruction.
- 11 -
years, to engage in prostitution or any sexual
activity for which any person can be charged
with a criminal offense, or attempts to do so,
shall be fined under this title and imprisoned
not less than 10 years or for life.
To support a conviction under the attempt portion of the statute,
the government must show that the defendant attempted to "(1) use
a facility of interstate commerce (2) to knowingly persuade,
induce, entice, or coerce (3) an individual under the age of 18
(4) to engage in illegal sexual activity."5 United States v. Berk,
652 F.3d 132, 138 (1st Cir. 2011) (quoting United States v.
Gravenhorst, 190 F. App'x 1, 3 (1st Cir. 2006) (per curiam)).
To prove an attempt, the government must establish both
a specific intent to commit the substantive offense and a
substantial step toward its commission. Id. at 140. Hence, for
conviction under § 2422, the specific intent required is the intent
to persuade, induce, entice, or coerce a minor into engaging in
illegal sexual activity. We have interpreted this requirement as
broadly requiring an intent "to achieve a mental state -- a minor's
assent -- regardless of the accused's intentions vis-à-vis the
actual consummation of sexual activities with the minor." United
States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (emphasis
omitted).
5Here, the government argued, the illegal sexual activity
was sexual assault under Puerto Rico law. See P.R. Laws Ann. tit.
33, § 5191(a) (defining sexual assault to include sex with someone
under age sixteen).
- 12 -
A substantial step toward commission of an offense is
"less than what is necessary to complete the substantive crime,
but more than 'mere preparation.'" Berk, 652 F.3d at 140 (quoting
United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008)). This
requirement serves to "distinguish between those who express
criminal aims without doing much to act on them and others who
have proved themselves dangerous by taking a substantial step down
a path of conduct reasonably calculated to end in the substantive
offense." United States v. Doyon, 194 F.3d 207, 211 (1st Cir.
1999). We have found that a variety of actions, including actions
short of meeting the minor in person, can constitute a substantial
step toward a § 2422(b) offense. See United States v. Rang, 919
F.3d 113, 121 (1st Cir. 2019) (defendant reserved hotel room and
sought consent from the minor's mother for a "sleepover" with the
minor); Berk, 652 F.3d at 140 (defendant offered to help a woman
find housing in exchange for sex with her daughter and sent the
woman leads about homes for rent); Gravenhorst, 190 F. App'x at 4
(defendant sent minors sexually explicit messages and proposed
meeting in person). But see Berk, 652 F.3d at 140-41 (noting that
"explicit sexual talk alone" does not constitute a substantial
step toward a § 2422(b) offense (citing United States v. Gladish,
536 F.3d 646, 652 (7th Cir. 2008))). Direct communication with a
minor, real or fictitious, is not required. A person can commit
a § 2422(b) offense by communicating with an adult who acts as an
- 13 -
"intermediary" between the defendant and a minor. See Berk, 652
F.3d at 140.
B. The Sufficiency of the Evidence Against Pérez
On the first element, intent, Pérez argues that the
government failed to provide enough evidence to allow a jury to
conclude that he intended to persuade, induce, entice, or coerce
a minor. He asserts: "There was no reason to do that [i.e.,
persuade, induce, entice, or coerce] here because the agent offered
[a minor] he presented as already ready, willing, and experienced,
'lik[ing] everything.'" In his view, the evidence, at most, could
allow the jury to conclude that Pérez communicated with an adult
with the intention of "bringing about a meeting at which prohibited
conduct was supposed to, or likely to occur."
Pérez's focus on the fictitious minor's supposed sexual
experience and willing participation is seriously misplaced. A
child who has previously been sexually abused or is otherwise
depicted as "experienced" can still be a victim of persuasion,
inducement, enticement, or coercion. See United States v. Hinkel,
837 F.3d 111, 116 (1st Cir. 2016) (upholding a § 2422(b) conviction
where the minor was described as "15 but experienced"). And a
child's expression that he "like[s] it" and wants to engage in
illegal sexual activity does not mean that persuasion, inducement,
enticement, or coercion could not possibly play a role. See
Dwinells, 508 F.3d at 67 (upholding a § 2422(b) conviction where
- 14 -
law enforcement agents posing as minors responded positively to
the defendant's sexual advances, including one fictitious minor
who "assured him that she would consent" to sexual activity in
person). To suggest otherwise is to misunderstand the nature of
child sexual abuse. See United States v. Gonyer, 761 F.3d 157,
167 (1st Cir. 2014) (describing the process of a sexual predator
"grooming" a child to form an emotional connection which would
lead the child to be persuaded to engage in sexual activity);
United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006) ("Child
sexual abuse is often effectuated following a period of 'grooming'
and the sexualization of the relationship." (quoting Sana Loue,
Legal and Epidemiological Aspects of Child Maltreatment, 19 J.
Legal Med. 471, 479 (1998))).
It was reasonable for the jury to believe that the
fictitious eleven-year-old boy Dave "offered" to Pérez would not
participate in the planned sexual encounter absent persuasion,
inducement, coercion, or enticement -- at a minimum, "implicit
coaxing or encouragement." See United States v. Montijo-Maysonet,
974 F.3d 34, 42 (1st Cir. 2020) ("[T]he four verbs Congress
used -- including 'entice' and 'induce' -- plainly reach implicit
coaxing or encouragement designed to 'achieve . . . the minor's
assent' to unlawful sex[.]" (second omission in original) (quoting
Dwinells, 508 F.3d at 71)). And it was reasonable for the jury to
conclude that Pérez must have been cognizant of that reality and
- 15 -
was relying on Dave to affect his "boyfriend's" mental state such
that the minor would participate. Although Agent Seig's text
messages can be read to imply that Dave had already groomed the
minor for the sexual activity, the jury could reasonably infer
that Pérez intended to use Dave as an intermediary to "entice"
(meaning "to draw on by arousing hope or desire: allure, attract,"
id.) the minor into participating in illegal sexual activity with
Pérez on January 4, 2016.
On the second element, substantial step, Pérez
emphasizes that he never communicated directly with a minor. Such
communication is not required to establish a substantial step
towards commission of a § 2422(b) offense. In Berk, we recognized
that "a defendant can be convicted [of a § 2422(b) offense] even
if the relevant communications are with an intermediary." 652
F.3d at 140. Berk involved communications between the defendant
and parents of minor children, but we did not state that only
parents could serve as intermediaries in the commission of a
§ 2422(b) offense. See id. Indeed, the rationale for relying on
a sexual predator's use of intermediaries extends to any adult
with sufficient influence or control over a minor. As explained
by the Third Circuit, in an opinion cited in Berk, § 2422(b) is
"part of an overall policy to aggressively combat computer-related
sex crimes against children[] [and] [i]t would be wholly
inconsistent with the purpose and policy of the statute to allow
- 16 -
sexual predators to use adult intermediaries to shield themselves
from prosecution." United States v. Nestor, 574 F.3d 159, 162 (3d
Cir. 2009); see also Montijo-Maysonet, 974 F.3d at 42 ("Congress
. . . meant to cast a broad net (consistent with the Constitution)
to catch predators who use the Internet to lure children into
sexual encounters." (citing H.R. Rep. 105-557, at 21 (1998), as
reprinted in 1998 U.S.C.C.A.N. 678, 678–79)).
The "broad net" plainly must cover a defendant who
attempted to use any intermediary adult perceived to have
sufficient sway to "lead a child to participate in sexual
activity." See United States v. Douglas, 626 F.3d 161, 164 (2d
Cir. 2010). The defendant's understanding of the nature and degree
of the adult's control over the minor is a question of fact for
the jury. Here, the jury could reasonably infer that an adult man
whose "boyfriend" is a minor, and who confidently invites another
man to have sex with the child, would have been viewed by the
defendant as someone with the power to elicit the minor's assent
to illegal sexual activity.6
Pérez similarly argues a lack of evidence of a
substantial step because the evidence showed he arrived at the
6 Pérez mischaracterizes the evidence by describing Dave as
"a part-time tutor" to the minor. While Dave did mention that the
minor was his student, he more importantly described him as his
"boyfriend" and a person with whom he had an ongoing sexual
relationship for six months.
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parking lot to meet Dave, not the minor. We agree with the district
court that "the act of traveling to meet an intermediary . . . has
been held sufficient to establish a 'substantial step.'" United
States v. Pérez-Rodríguez, No. 16-041 2016, WL 7442650, at *2
(D.P.R. Dec. 27, 2016) (citing Berk, 652 F.3d at 140). Drawing
all inferences in favor of the government, a rational jury could
find that Pérez's communications with Dave and his subsequent
arrival at the meeting he arranged with Dave constituted a
substantial step to persuade, induce, entice, or coerce a minor.
Thus, there was sufficient evidence to convict and the motion for
acquittal was properly denied.
III.
The district court declined to instruct the jury as to
the elements of Pérez's primary defense, entrapment, because, in
its view, the record did not contain sufficient evidence to warrant
the instruction. Pérez argues that this omission denied him a
fair trial.
A. Standard of Review
Preserved objections to the denial of a requested jury
instruction are subject to plenary review. United States v. Joost,
92 F.3d 7, 12 (1st Cir. 1996). If, however, the defendant fails
to preserve his claim of entitlement to a jury instruction, the
claim is forfeited, and we review the district court's decision
under the plain error standard of Rule 52(b) of the Federal Rules
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of Criminal Procedure. United States v. Baltas, 236 F.3d 27, 36
(1st Cir. 2001). It 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, 26 (1st Cir. 1991) ("As we have repeatedly held, . . .
[a] party may not claim error in the judge's charge to the jury
unless that party 'objects' after the judge gives the charge but
before the 'jury retires . . . .'" (quoting Fed. R. Crim. P. 30)),
overruled on other grounds by Bailey v. United States, 516 U.S.
137, 149 (1995). Though Pérez requested an entrapment instruction
before the trial and argued for it at a charging conference, he
did not lodge a post-charge objection to the denial of the
instruction.7 Thus, Pérez's claim is subject to plain error
review.
To meet the heavy burden of establishing plain error, an
appellant must show "(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
Pérez also failed to make an objection when the judge invited
7
objections on the record directly before instructing the jury.
Even if Pérez had made such an objection, his claim would still be
subject to plain error review under our precedent because he did
not renew it after the instruction, and we hold parties strictly
to that timing. See Wilkinson, 926 F.2d at 26.
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integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The first
prong, "error," consists of "[d]eviation from a legal rule."
United States v. Olano, 507 U.S. 725, 732-33 (1993). The second
prong requires that the error identified in the first prong is not
"open to doubt or question," though an appellant can meet this
requirement even in the "absence of a decision directly on point."
United States v. Morales, 801 F.3d 1, 10 (1st Cir. 2015).8 To
establish the third prong, the appellant must show that "it is
reasonably probable that the . . . error affected the result of
the proceedings." United States v. Latorre-Cacho, 874 F.3d 299,
303 (1st Cir. 2017). Our analysis under the fourth prong is
guided by our fundamental concern with "the public legitimacy of
our justice system[,] [which] relies on procedures that are
'neutral, accurate, consistent, trustworthy, and fair.'" Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (quoting
Josh Bowers & Paul H. Robinson, Perceptions of Fairness and
We note that, in our circuit, the second prong is sometimes
8
described as "clear and obvious error," e.g., United States v.
Scott, 877 F.3d 42, 49 (1st Cir. 2017), while in other opinions it
is phrased as "clear or obvious error," e.g., United States v.
Aquino-Florenciani, 894 F.3d 4, 7 (1st Cir. 2018). As far as we
can tell, there is no substantive difference between the two
usages. In fact, we are unaware of any decision suggesting that
the words "clear" and "obvious" have different meanings. We will
use the "clear or obvious" formulation here, which appears to be
the more frequent usage.
- 20 -
Justice: The Shared Aims and Occasional Conflicts of Legitimacy
and Moral Credibility, 47 Wake Forest L. Rev. 211, 215–16 (2012)).
The plain error standard is a difficult burden for any
appellant to meet. See United States v. Gelin, 712 F.3d 612, 620
(1st Cir. 2013) ("This multi-factor analysis makes the road to
success under the plain error standard rather steep; hence,
reversal constitutes a remedy that is granted sparingly."). It is
a particularly challenging standard to meet in the context of an
unpreserved objection to jury instructions. See United States v.
Paniagua–Ramos, 251 F.3d 242, 246 (1st Cir. 2001) ("[T]he plain
error hurdle, high in all events, nowhere looms larger than in the
context of alleged instructional errors."). Nonetheless, on rare
occasions, the severity of an error in instructing the jury does
rise to the level of plain error and requires vacatur of the
conviction. See, e.g., Latorre-Cacho, 874 F.3d at 310; United
States v. Delgado-Marrero, 744 F.3d 167, 189 (1st Cir. 2014).
B. The Entrapment Defense
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, 548 (1992);
see United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007)
("Congress could not have intended that its statutes were to be
- 21 -
enforced by tempting innocent persons into violations." (quoting
Sherman v. United States, 356 U.S. 369, 372 (1958)). The defense
has two prongs: (1) improper government inducement and (2) the
defendant's lack of predisposition to commit the offense charged.
Id.
1. Improper Inducement
Improper inducement, also referred to as "government
overreaching," occurs when law enforcement agents engage in
conduct "of the type that would cause a person not otherwise
predisposed to commit a crime to do so." Hinkel, 837 F.3d at 117.
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, 961 (1st Cir.
1994) (quoting Jacobson, 503 U.S. at 550). 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, non-
criminal type of motive." Id. "Plus" factors that may tip a
government operation from a permissible sting operation to
improper inducement include, for example, intimidation and
threats, "dogged insistence," playing on the defendant's
sympathies, and "repeated suggestions." Id. (collecting cases).
"[E]ven very subtle governmental pressure, if skillfully applied,
can amount to inducement." United States v. Poehlman, 217 F.3d
- 22 -
692, 701 (9th Cir. 2000). The judgment of whether government
conduct has crossed the line from valid 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, 338 (1st Cir. 1995); see
also id. ("To assume that we are dealing with a sharp boundary
rather than a spectrum is an illusion.").
2. Lack of Predisposition
The second element of the entrapment defense turns on
whether the "defendant was disposed to commit the criminal act
prior to first being approached by Government agents." Jacobson,
503 U.S. at 549. Our decision in Gendron sets forth our
understanding of this element as follows:
The right way to ask the question, it seems to
us, is to abstract from -- to assume away --
the present circumstances insofar as they
reveal government overreaching. That is to
say, we should ask how the defendant likely
would have reacted to an ordinary opportunity
to commit the crime. By using the word
"ordinary," we mean an opportunity that lacked
those special features of the government's
conduct that made of it an "inducement," or an
"overreaching." Was the defendant
"predisposed" to respond affirmatively to a
proper, not to an improper, lure?
Gendron, 18 F.3d at 962 (citation omitted). The purpose of this
predisposition inquiry is to determine whether the defendant is
"someone who would likely commit the crime under the circumstances
- 23 -
and for the reasons normally associated with that crime, and who
therefore poses the sort of threat to society that the statute
seeks to control, and which the government, through the 'sting,'
seeks to stop." Id. at 963. The "critical time" for the
predisposition analysis is the time "in advance of the government's
initial intervention." United States v. Gifford, 17 F.3d 462, 469
(1st Cir. 1994); see also United States v. Gamache, 156 F.3d 1, 12
(1st Cir. 1998) ("[T]he concept of predisposition has a definite
temporal reference: 'the inquiry must focus on a defendant's
predisposition before contact with government officers or
agents.'" (quoting United States v. Brown, 43 F.3d 618, 627 (11th
Cir. 1995)); Poehlman, 217 F.3d at 703 ("Quite obviously, by the
time a defendant actually commits the crime, he will have become
disposed to do so. However, the relevant time frame for assessing
a defendant's disposition comes before he has any contact with
government agents, which is doubtless why it's called
predisposition."). While evidence of the defendant's response to
the government's inducement may be relevant to the predisposition
inquiry, that evidence must be evaluated in terms of what it
reveals about the defendant's readiness to commit the crime before
the government contacted him. See Gifford, 17 F.3d at 469.
We have advised trial courts that the following factors
may be useful in evaluating the evidence of predisposition or lack
thereof:
- 24 -
(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 the criminal activity for profit;
(4) whether the defendant showed reluctance to
commit the offense, which was overcome by the
governmental persuasion; and (5) the nature of
the inducement or persuasion offered by the
Government.
Gamache, 156 F.3d at 9–10. 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.
3. The Defendant's Burden of Production
A defendant is entitled to a jury instruction on
entrapment if he meets a modest burden of production on the two
prongs of the defense. United States v. Rodriguez, 858 F.2d 809,
814 (1st Cir. 1988). This rule is in keeping with the "general
proposition [that] a defendant is entitled to an instruction as to
any recognized defense for which there exists evidence sufficient
for a reasonable jury to find in his favor." Mathews v. United
States, 485 U.S. 58, 63 (1988).
In analyzing whether the defendant has met his burden,
the court must construe the evidence in the light most favorable
to the defendant. Rodriguez, 858 F.2d at 813. An entrapment
instruction is required if the evidence, viewed in this charitable
- 25 -
fashion, "furnishes an arguable basis for application of the
proposed rule of law." Id. at 814 (quoting United States v. Coady,
809 F.2d 119, 121 (1st Cir. 1987)). In other words, the record
must contain evidence that makes the entrapment theory "plausible"
or "superficially reasonable." Gamache, 156 F.3d at 9. As we
have previously emphasized, "[t]his is not a very high standard to
meet." Id.
A defendant does not need to introduce his own evidence
to meet this burden. Rodriguez, 858 F.2d at 813. He may rely on
"evidence adduced during the government's case" or "any probative
material in the record." Id. The proof may be "circumstantial
rather than direct." Id. If there are factual disputes in the
record, the court is not permitted to "weigh the evidence, make
credibility determinations, or resolve conflicts in the proof."
Gamache, 156 F.3d at 9. If the parties argue competing inferences,
the court must draw all reasonable inferences in favor of the
defendant's entrapment theory. Id. Ultimately, if "a reasonable
jury could view the evidence as establishing that defendant was
entrapped . . . [the defendant] [i]s entitled to an entrapment
instruction." Teleguz, 492 F.3d at 84. Determining whether
government conduct has crossed the line into improper inducement
or whether a person was predisposed to commit an offense are
delicate questions of fact for the jury to sort out. See Acosta,
67 F.3d at 338. Thus, a judge should not hesitate to send the
- 26 -
question to the jury if there is even ambiguous evidence of
entrapment.
Once the defendant meets his burden of production,
entrapment becomes a question of fact for the jury. Id. At that
stage, the government bears the burden of proving beyond a
reasonable doubt either that there was no improper inducement or
that the defendant was predisposed to commit the offense. Id. If
"a rational jury could decide either way, its verdict will not be
disturbed." Id.
IV.
Consistent with our earlier explanation of the plain
error standard, Pérez is entitled to relief if he is able to
demonstrate that: (1) the district court erred in failing to give
an entrapment instruction; (2) his entitlement to that instruction
was clear or obvious; (3) the omission affected his substantial
rights; and (4) it undermined the fundamental fairness of the
trial. See Duarte, 246 F.3d at 60.
A. Error
The district court denied Pérez's requested entrapment
instruction for failure to meet his burden of production on the
lack of predisposition prong, without addressing whether Pérez had
met his burden of production on the improper inducement prong.
Because the defendant is required to meet the burden of production
on both prongs, a court may deny an entrapment instruction based
- 27 -
on a failure to show evidence on one prong or the other, without
discussing both. See, e.g., United States v. Rivera-Ruperto, 846
F.3d 417, 431 (1st Cir. 2017); United States v. Sánchez-Berríos,
424 F.3d 65, 77 (1st Cir. 2005). Because we disagree with the
district court's assessment of the evidence on predisposition, we
must consider both prongs. If the defendant failed to meet his
burden of production on the improper inducement prong, an error by
the judge in the assessment of the predisposition prong would be
harmless.
We also repeat that improper inducement and
predisposition are analytically linked in that improper
inducement, and the defendant's responses to it, are part of the
evidence courts should consider in deciding whether the defendant
met his burden of production on the lack of predisposition prong.
Gamache, 156 F.3d at 9–10; see Joost, 92 F.3d at 13-14 ("As for
the absence of predisposition prong, much of what we have pointed
to [in the improper inducement analysis] is relevant."). In
evaluating the question of whether the defendant was predisposed,
the factfinder must "abstract from -- . . . assume away -- the
present circumstances insofar as they reveal government
overreaching." Gendron, 18 F.3d at 962 (emphasis omitted). If
there was no improper inducement, we already have our answer as to
how the defendant would respond to "an ordinary opportunity to
commit the crime" and any further analysis of predisposition is
- 28 -
unnecessary. Id. (emphasis omitted). But if there was improper
inducement, the nature of that inducement and the defendant's
responses to it are relevant to the predisposition analysis to the
extent that they allow inferences about the defendant's state of
mind prior to the government's intervention. Rodriguez, 858 F.2d
at 816 (considering evidence of the defendant's responses to
improper inducement because "later events often may shed light on
earlier motivations").
1. Improper Inducement
Agent Seig created a Grindr profile appearing to belong
to an adult named "Dave W." The profile described Dave as
"[m]uscular, [w]hite, [s]ingle." Pérez sent a message to that
profile, presumably believing he was speaking with that adult man.
Dave quickly turned the conversation towards sexual activity with
a minor by offering to arrange a sexual encounter with his eleven-
year-old "boyfriend." Dave said that both he and the minor would
be part of the encounter, stating it would be "him you and I" and
describing the encounter as a "threesome." This type of "bundling
of licit and illicit sex into a package deal" can constitute a
"plus factor" for purposes of establishing improper inducement.
Hinkel, 837 F.3d at 118; see also Gendron, 18 F.3d at 961
(describing "the government's taking advantage of an alternative,
non-criminal type of motive" as a "typical[]" example of an
inducement plus factor).
- 29 -
Agent Seig, writing as Dave, represented from the start
that the eleven-year-old minor was his "boyfriend" -- a term which
suggests the legally impossible notion that the minor was a
consenting participant in a sexual and romantic relationship with
Dave. Agent Seig repeatedly stated that this imagined encounter
would be a positive experience for the minor. Such repeated
suggestions "downplay[ing] the harm" caused by child sexual abuse,
or otherwise justifying it, can constitute a "plus factor" which
a jury may rely on to find improper inducement. See Hinkel, 837
F.3d at 118 (stating that the defendant presented evidence of
"clever and sophisticated inducement" where the law enforcement
agent "on numerous occasions, downplayed the harm that could be
expected to flow from the commission of the crime by describing
how 'amazing' the encounter would be, how 'excited' 'Samantha'
was, and how 'Lisa' 'appreciate[d]' how 'honest and caring' Hinkel
had been in his messages"); Gamache, 156 F.3d at 11 (stating that
the law enforcement agent's repeated "justifications for the
illicit activity (intergenerational sex) by describing 'herself'
as glad that Gamache was 'liberal' like her, expressing that she,
as the mother of the children, strongly approved of the illegal
activity, and explaining that she had engaged in this conduct as
a child and found it beneficial" constituted evidence of improper
inducement); see also Jacobson, 503 U.S. at 540 (describing the
government's improper inducement as including repeated
- 30 -
"suggesti[ons] that petitioner ought to be allowed to do what he
had been solicited to do," i.e., purchase child pornography).
Hence, the record contained evidence that would allow a
jury to find two significant "plus" factors in Agent Seig's
communications with Pérez: first, Seig's linking the opportunity
for adult sexual activity, a lawful objective of Grindr users,
with the unlawful sexual activity involving a minor -- establishing
a kind of prerequisite for the adult activity; second, Seig's
repeated suggestions that the illegal conduct was not harmful, but
actually beneficial, to the minor. Thus, a reasonable jury could
have found improper inducement -- a necessary precondition for a
defendant to meet his burden of production on lack of
predisposition.
2. Lack of Predisposition
Pérez met his burden of production on the lack of
predisposition prong if the record would permit a reasonable
inference by the jurors that, before his interaction with Agent
Seig, Pérez was not predisposed to commit the crime of enticing a
minor to commit unlawful sexual activity. See Gendron, 18 F.3d at
962. The five factors identified in Gamache guide our analysis.
See 156 F.3d at 9-10.
As to the first factor, the character or reputation of
the defendant, the evidence might include prior criminal
convictions for similar offenses or a history of sexual interest
- 31 -
in minors. Tellingly, the record contains no such evidence. See
id. at 12 ("[T]here was no evidence presented that Gamache had
engaged in similar activities independent of this sting operation.
The jury could have relied on this evidence to find a lack of
predisposition . . . ."); see also Hinkel, 837 F.3d at 118 (stating
that the defendant produced sufficient evidence to "clearly" meet
his prima facie burden of a lack of predisposition because, inter
alia, "the government had not uncovered any evidence suggesting
that he had other underage victims"). The absence of any kind of
negative character evidence relating to sexual activity with
minors is one point in favor of allowing the entrapment
instruction.
There are two statements from Pérez early in the
conversation with Dave that "I started at 8." As noted earlier,
the exchange begins as follows:
Pérez: Hello what are you doing?
Dave: Hey what's up
Pérez: Let's see you
Dave: Cool, do you like really young guys?
Pérez: Yes
Age?
I started at 8
Dave: Me? 35, but my boyfriend is young
Pérez: Hahhaha Okk
How old is he?
- 32 -
What does your boyfriend like?
Dave: He likes everything :)
He is very young, what age do you like?
Pérez: The younger the better
I don't discriminate
I started at 8 hehehhe
So you tell me
What does he like to do?
We are close, we can come up with some fun
From there up I do it all
Dave: Do you understand English? I speak only a little
Spanish
My boyfriend is 11 years old. Do you want to play
with him?
Pérez: Mmmm yessss
Where is he?
I speak little only a little English?
Share pics??
You tell me when and where???
Do you prefer to call?
Yes, I want to play
The dissent states that, "in context," the exchange
plainly reflects a "stark pre-dispositional admission by Pérez."
In fact, however, the dissent ignores the context of Pérez's
statements that "I started at 8." Both statements are made before
the notion of sex with a minor entered the conversation ("My
boyfriend is 11 years old. Do you want to play with him?"). Until
Dave talks about his eleven-year-old "boyfriend," the
conversation, which took place on a dating app for adults, can be
read as discussing sex with young adults. When Dave refers to
himself as thirty-five, he could be saying that he is thirty-five
- 33 -
years old, or that he started having his sexual experiences at age
thirty-five. Clearly, he (i.e., Agent Seig, posing as Dave) is
not saying that his partners in his sexual experiences are thirty-
five. It thus remains unclear, when Pérez reiterates that he
"started at 8," whether he is referring to the beginning of his
own sexual experiences or the age of boys with whom he has had
sex.
The dissent similarly ignores the context when Pérez
says, "the younger the better." Here, too, he makes the statement
before Dave made any reference to his "boyfriend" being underage.
Thus, it is hardly clear that Pérez is admitting to having an
interest in children rather than meaning that he is interested in
younger adults. The latter interpretation is plausible,
particularly in light of Dave's reference to "really young guys,"
(the word "guys" tending to imply adults), and the fact that Pérez
made the comments on an adults-only dating app. As for Pérez's
apparent eagerness when he discovers that Dave's "boyfriend" is
only eleven, we have said in our case law that " eagerness alone
. . . is not sufficient to remove the predisposition question from
the jury's purview." Gamache, 156 F.3d at 12.
Hence, the text is ambiguous enough that a jury, not a
judge, needed to determine its meaning. See id. at 9 ("[T]he
court's function is to examine the evidence on the record and to
draw those inferences as can reasonably be drawn therefrom,
- 34 -
determining whether the proof, taken in the light most favorable
to the defense can plausibly support the theory of the defense.").
Thus, for the purpose of evaluating the evidence on the
predisposition prong, the "I started at 8" statements do not
provide evidence of a history of sexual interest in minors.
On the second factor, the initial suggestion of criminal
activity, it is indisputable that the government first suggested
the sexual abuse of a minor. In fact, as we have noted, Pérez
encountered law enforcement on a forum intended to be used only by
adults.9 The jury could reasonably draw the inference from Pérez's
use of Grindr that, before his conversation with "Dave," he was
interested in sex with other adult men, not children. Indeed, the
expert psychologist who testified at sentencing drew this same
inference, stating: "A pedophile will not be using, my personal
clinical opinion, I don't think they will use Grindr because he
will be easily identified." Although Agent Seig testified that he
designed his profile to contain "veiled" references which would be
understood as suggesting sexual abuse of a minor "by someone who
was versed in communicating in the realm of pedophiles," we must
interpret the evidence in the manner most charitable to Pérez.
Agent Seig testified that profiles explicitly seeking sexual
9
encounters with minors "would be removed from the social network,
because many people would report that and then the owners of the
network would remove it."
- 35 -
Here, there is no basis for concluding on this record that Pérez
understood these veiled references.
The third factor -- whether the defendant engaged in the
criminal activity for profit -- is not relevant here, but we note
that monetary profit was not at issue.
As for the fourth factor, "whether the defendant showed
reluctance to commit the offense," the transcripts show that Pérez
insisted on meeting Dave without the minor's presence. Taken in
the light most favorable to Pérez, as it must be at this stage,
this insistence can be read as a sign of some reluctance to commit
the crime. Pérez made clear that any subsequent meeting with the
minor would depend on how the meeting with Dave went, and it is a
reasonable inference from the messages that Pérez had not made up
his mind about actually meeting the child. A jury could also
conclude from Pérez's insistence on meeting with Dave alone, his
repeated statements that he wanted to get to know Dave first, and
his clear interest in Dave, that Pérez was hesitant about moving
beyond the realm of fantasy with a minor and was motivated by a
desire to "be horny" with an adult in whom he was sexually
interested. Although a jury could also conclude that Pérez
intended to proceed directly to a meeting with the minor after
seeing Dave and ensuring he was not a law enforcement officer,
that plausible inference is not sufficient to take the entrapment
defense from the jury. See Gamache, 156 F.3d at 10 (explaining
- 36 -
that whether the government disputes the defendant's version of
the facts is "irrelevant to the question of whether it raises an
issue of entrapment to be put before the jury"); Rodriguez, 858
F.2d at 815 (explaining that it is sufficient that "[the
defendant's] version, whether or not it strikes us as particularly
credible, is neither thoroughly implausible nor constructed
entirely of gauzy generalities").
The fifth factor, "the nature of the inducement or
persuasion offered by the Government," brings us back to the
improper inducement analysis. From the very beginning of the
conversation, Pérez expressed his interest in "Dave," an adult
man. Before either party said anything about a minor, Pérez said
to Dave, "Let's see you," likely meaning that he wanted to see a
picture of "Dave." Later in the conversation, Pérez asked Dave
for pictures again and for a physical description of his body. A
juror could reasonably infer that Pérez was primarily motivated by
sexual interest in "Dave," not the minor. Pérez also asked Dave
questions about how he "got" his "boyfriend." Drawing inferences
in favor of Pérez, these questions suggest that he asked them
because he had not ever thought about or tried to entice a minor
into sex before, and would not do so without the encouragement of
the government agent and repeated statements "downplaying the
harm," Hinkel, 837 F.3d at 118, or, even more offensively,
normalizing the sexual behavior with the minor.
- 37 -
To be sure, there are different inferences one could
draw from the communications between Pérez and Dave. But, in
determining whether the defendant has met his burden of production,
we are required to draw all inferences in favor of the defendant.
The evidence relevant to the factors listed in Gamache provides at
least some evidence of lack of predisposition. Thus, the record
met Pérez's modest burden of production, and the district court
erred by denying the entrapment instruction.
B. Clear or Obvious Error
1. Relevant First Circuit Precedent
Prior to Pérez's trial in May 2017, our court had decided
two significant cases addressing the circumstances in which a
defendant is entitled to jury instructions on the entrapment
defense in the context of child sexual abuse sting operations:
Hinkel, 837 F.3d at 111, and Gamache, 156 F.3d at 1. Because these
cases reveal the clarity of the district court's error, we describe
their facts in some detail.
a. Hinkel
Hinkel was convicted of attempted enticement of a minor
in violation of § 2422(b) -- the precise offense at issue here --
after email correspondence with a law enforcement agent posing as
"Lisa," the thirty-eight-year-old mother of a fictitious fifteen-
year-old girl, "Samantha." Hinkel, 837 F.3d at 116. Hinkel
contacted "Lisa" based on a personal ad posted to an "online
- 38 -
message board . . . frequented by those seeking adult sex
partners." Id. at 115. The ad stated, "mom with daughter looking
for taboo relationship." Id. at 116. Hinkel responded with an
email containing "graphic descriptions of sexual acts that he
imagined engaging in with 'Lisa' and her daughter." Id. The
government agent posing as "Lisa" promptly told Hinkel that her
daughter was "15 but experienced," to which Hinkel responded,
"Sounds very naughty! I am concerned about her age since legally
she should be 16 or older." Id. The agent answered "she[']s not
[16 or older] so i guess this conversation is over." Id. Hinkel
immediately replied, "Nope..... It is not over! I want to talk
more! I'm very intrigued by it all. Such taboo and naughty
play!!!!" Id.
For the next month, Hinkel continued to correspond with
Lisa in "lurid detail" about his desire to have sex with
"Samantha," though he occasionally expressed "conflicting
feelings." Id. at 116-17. Lisa reassured Hinkel, writing "i think
you will love her...and i appreciate the way you describe our
situation." Id. at 117. Hinkel also exchanged sexually graphic
emails with Samantha directly. Id. Hinkel and Lisa made plans
for Hinkel to visit and have sex with Samantha. Id. Lisa told
him that the planned encounter would be "such an amazing experience
for us to have together." Id. When Hinkel arrived at the appointed
time and place, he was arrested and subsequently charged and
- 39 -
convicted of a § 2422(b) offense. Id. At his trial, the government
introduced evidence of "five cartoons, which consist of detailed
anime drawings of adults and minors engaged in sex acts" that law
enforcement had found on Hinkel's computer. Id. at 122.
Hinkel's primary defense at his trial was entrapment,
and -- unlike here -- the district court instructed the jury on
the elements of that defense. Id. On appeal, Hinkel claimed the
government's evidence was insufficient to overcome the entrapment
defense. Id. We rejected that challenge because it was reasonable
for the jury to find that entrapment had not occurred. Id. at
120. Of importance here, however, is our explicit consideration
of whether Hinkel had satisfied his burden of production even
though the district court had instructed the jury on entrapment.
Id. at 118. Hence, although the posture of Hinkel was different,
its discussion of the facts that clearly met the threshold for an
entrapment instruction is directly applicable here.
b. Gamache
Following a postal service correspondence with a law
enforcement agent posing as a mother of three young children,
Gamache was convicted of travel with intent to engage in illicit
sexual conduct with a minor in violation of 18 U.S.C. § 2423(b),
and an attempt to use a minor to produce sexually explicit images
in violation of 18 U.S.C. § 2251(a). Gamache, 156 F.3d at 2. The
agent had published a personal ad in an adult magazine which read,
- 40 -
in part, "female, 31; Single mom, two girls, one boy, seeks male
as partner and mentor, seeks fun, enjoys travel and photography."
Id. at 3. Gamache responded with interest in the adult female
author of the advertisement. Id.
The agent, posing as "Frances," steered the
correspondence toward sex with her three minor children, ages
twelve, ten, and eight. Id. at 4. Frances wrote that she wanted
to "introduc[e] an adult male to further [her] children's sexual
education and experiences." Id. Gamache responded that he was
"not shocked" and that he would be "honored" to be chosen as the
adult man to have sex with Frances's children. Id. Over several
months of continuing correspondence, Frances described sexual
activities she wanted Gamache to engage in with her children, and
Gamache replied in kind, sharing his own ideas and desires. Id.
at 4-7. He also sent a letter to the children describing sexual
activities he planned to engage in with them. Id. at 7. Throughout
the correspondence, Frances referenced a "kind" uncle who "taught
[her] about sex when [she] was very young, and wanting the same
type of experience for [her] children." Id. at 4-5 (alterations
in original). She told Gamache the children were "very excited
about meeting" him, and they arranged for Gamache to meet "Frances"
and her children at a motel. Id. at 5-7. When Gamache arrived at
the motel, he was arrested. Id. at 7.
- 41 -
Gamache requested an entrapment instruction at his
trial, and the court rejected his request. Id. at 3. His objection
was properly preserved and subject to plenary review. Id. at 9.
We held that Gamache had met his burden of production on both
prongs of the entrapment defense and that the court erred in
failing to give the instruction. Id. at 12. We vacated the
conviction and remanded for a new trial.
c. Common Principles in Hinkel and Gamache
Our review of Hinkel and Gamache reveals that, at the
time the district court rejected Pérez's request for an entrapment
instruction, we had previously held that certain facts in
combination -- present in both of those cases -- entitled a
defendant to an entrapment instruction.
In both cases, the government originated the criminal
design and invited the defendants to participate by placing an
ambiguous advertisement in an adults-only forum; then, when the
defendants responded to the advertisements, the government offered
to arrange a sexual encounter involving a minor. Hinkel, 837 F.3d
at 116; Gamache, 156 F.3d at 10. In both cases, we noted that the
government agents used the tactic of "bundling . . . licit and
illicit sex into a package deal," meaning that they offered a
sexual encounter that would include both legal sex with an adult
and illegal sex with a minor. Hinkel, 837 F.3d at 118; see also
Gamache, 156 F.3d at 10. A key component of the government agent's
- 42 -
strategy in both cases was "downplay[ing] the harm" that would
flow from the crime through repeated statements portraying sex
with a minor as normal or even beneficial. Hinkel, 837 F.3d at
116; see Gamache, 156 F.3d at 10-11. In both cases, the defendants
manifested some hesitancy to commit the offense, though most of
their communications expressed eagerness to do so, and,
ultimately, both defendants showed up for a meeting with the minor.
Finally, in both cases, there was no evidence of the defendants'
prior sexual activity with minors. Hinkel, 837 F.3d at 116;
Gamache, 156 F.3d at 10.
Not surprisingly, given these similarities, we cited
Gamache as apt precedent in stating that the defendant met his
burden of production in Hinkel. The cases, of course, are not
identical. Gamache involved a more prolonged period of
correspondence and, arguably, more severe government manipulation.
Despite those differences, however, when all inferences are drawn
in favor of the defendant, the record in each case told, in
essence, the same story: a defendant without any known prior sexual
contact with minors moved from his initial, lawful inquiry about
adult sex to what a jury could find was an attempt to commit an
offense involving sexual exploitation of a minor, prompted by
encouragement from the government that a reasonable juror could
deem improper inducement.
- 43 -
2. Comparing Pérez's Case with Hinkel and Gamache
a. Initiation by the Government Agent
Like the law enforcement agents in Hinkel and Gamache,
Agent Seig purported to be an adult using a forum for adults
seeking adult sexual partners, and alluded to the possibility of
a relationship with a younger person without specifying the nature
of the relationship or the age of the young person. See Hinkel,
837 F.3d at 116; Gamache, 156 F.3d at 10. Pérez took the bait and
contacted the agent. Like Hinkel and Gamache, his initial message
did not include any reference to sex with a minor. He wrote,
"Hello what are you doing?" and then "Let's see you." It was the
government agent who turned the conversation to sex with minors,
asking if Pérez "liked really young guys," and then, when he
responded affirmatively, making the offer of sex with a minor: "My
boyfriend is 11 years old. Do you want to play with him?" When
Pérez again responded affirmatively, Agent Seig made that offer
more explicit, asking what sex act Pérez wanted to engage in with
the minor. While Pérez expressed enthusiastic interest, "[i]t was
the Government that first mentioned the 'child[]' as [a] sex
object[]; it was the Government that first used sexually explicit
language involving the 'child[]'; [and] it was the Government that
escalated the subject of sex with [the] child[]." Gamache, 156
F.3d at 10.
- 44 -
b. Government's Bundling of Licit and Illicit Sex
Agent Seig's sting operation relied on precisely the
same tactic we described in Hinkel and Gamache: the "bundling of
licit and illicit sex into a package deal." Hinkel, 837 F.3d at
118; see also Gamache 156 F.3d at 10. Pérez reached out to Dave
-- described as a "[m]uscular, [w]hite, [s]ingle" adult man -- on
an adult dating application. He clearly remained interested in
the adult throughout the conversation, including asking for photos
just of Dave when Dave would not send photos of the minor. These
circumstances permit a plausible inference that Pérez was not
predisposed to sexually abuse a child, but, rather, was motivated
by interest in sex with Dave. See Gamache, 156 F.3d at 10 (noting
a plausible argument that "all of [Gamache's] correspondence about
sex with minors was a ruse to have sex with 'Frances,' who was his
target from the time that he answered the ad").
c. Government Agent's Statements Normalizing Sexual
Abuse
Dave's comments repeatedly portraying sex with a minor
as normal or even beneficial resemble those made by the agents in
Hinkel and Gamache. See Hinkel, 837 F.3d at 118 (stating that the
agent "downplayed the harm that could be expected to flow from the
commission of the crime by describing how 'amazing' the encounter
would be"); Gamache, 156 F.3d at 11 ("[T]he government agent
provided justifications for the illicit activity [by] . . .
- 45 -
expressing that she, as the mother of the children, strongly
approved of the illegal activity, and explaining that she had
engaged in this conduct as a child and found it beneficial to
her."). The government's perverse statements that the minors would
enjoy and benefit from sexual exploitation were important because
such suggestions have the potential to influence the mind of a
person who is not predisposed to abuse children and convince him
that sex with a minor is acceptable. See Gamache, 156 F.3d at 11
("These solicitations suggested that Gamache ought to be allowed
to engage in the illicit activity . . . .").
d. Defendant's Reluctance to Commit the Offense
As in Hinkel and Gamache, some of Pérez's actions could
be interpreted as reluctance to commit the offense. He repeatedly
insisted on meeting with Dave alone, without the minor's presence.
That demand could be interpreted as an indication that he was
reluctant to go through with meeting the minor, despite his many
statements of enthusiasm about doing so.
To be sure, Pérez's plausible expression of reluctance
differed from the more explicit statements in Hinkel and Gamache.
Still, there was no outright rejection of the criminal conduct in
either of those cases. Hinkel briefly indicated hesitation when
"Lisa" told him that her daughter was fifteen, but clearly overcame
his reluctance just moments later, stating in response to an
obvious exit opportunity, "Nope..... It is not over! I want to
- 46 -
talk more! I'm very intrigued by it all. Such taboo and naughty
play!!!!"10 See Hinkel, 837 F.3d at 116. Hinkel subsequently did
arrange and show up at a meeting with the fictitious fifteen-year-
old. Id. at 117. Gamache initially resisted Frances's suggestion
that he bring a video camera, but he stated his hesitance was based
on technological ignorance, not any moral opposition to creating
child pornography. See Gamache, 156 F.3d at 12. In the end,
Gamache did show up for a meeting with the children and brought a
video camera with him.
e. Defendant's Eagerness to Commit the Offense
Aside from his insistence on meeting Dave separately
prior to meeting the minor, Pérez's responses to Dave's suggestions
of sexual activity with an eleven-year-old boy were decidedly not
reluctant. His immediate response to Dave's offer of sex with his
"boyfriend" was "yes," and he made explicit statements about the
sex acts he wanted to engage in with the boy.11 Gamache and Hinkel
10In an apparent attempt to suggest that Hinkel was reluctant
to engage in sex with a minor in a way that Pérez was not, the
dissent ignores this quick abandonment of any hesitation in its
characterization of Hinkel's response to the prospect of sex with
a minor.
11The dissent focuses on this immediate affirmative response,
suggesting that Pérez's enthusiasm made the necessity of an
entrapment instruction in this case unclear, and, thus, its
omission was not plain error. But our precedent has been clear on
this point: "[E]agerness alone . . . is not sufficient to remove
the predisposition question from the jury's purview." Gamache,
156 F.3d at 12. Similarly, the dissent emphasizes that Pérez went
- 47 -
expressed similar reactions to law enforcement agents' criminal
suggestions. See Hinkel, 837 F.3d at 118 (describing the
defendant's response as "eager[]"); Gamache, 156 F.3d at 11
(describing the defendant's response as "enthusiastic"). Both
Hinkel and Gamache gave graphic descriptions of the sex acts they
wanted to engage in with minors. See Hinkel, 837 F.3d at 116
(stating that "Hinkel corresponded frequently and in lurid detail
with 'Lisa' and her fictitious daughter 'Samantha'" and that he
"describ[ed] his own sexual desires in detail"); Gamache, 156 F.3d
at 6 (describing a letter from Gamache to Frances that
"explain[ed], at length and in detail, how he will carry about the
sexual 'education' of 'Frances'' 'children'").
Our holdings in Hinkel and Gamache make clear that a
defendant can meet his burden of production on lack of
predisposition even if he responded eagerly or enthusiastically to
the proposed criminal conduct. As we have noted, in Gamache we
explained, "[W]hile 'ready commission of the criminal act can
to meet with Dave just five days after the first message. This
time frame may be another display of eagerness, certainly worthy
of the jury's consideration, but it did not warrant withholding
the entrapment instruction from the jury when other evidence in
the record supported a finding of a lack of predisposition. The
dissent also overlooks the fact that Pérez was arrested, not at a
planned meeting with the minor, but rather, at a meeting with Dave.
Read in the light most favorable to Pérez, he was prepared to meet
with the adult intermediary alone, but had not clearly agreed to
meet with the minor. By contrast, Hinkel and Gamache were arrested
at planned meetings with minors. See Hinkel, 837 F.3d at 116;
Gamache, 156 F.3d at 7.
- 48 -
itself adequately evince an individual's predisposition' and thus
provide sufficient evidence to support a jury's finding that the
defendant was predisposed to commit the offense, eagerness alone,
when coupled with the 'extra elements' present in this sting
operation, is not sufficient to remove the predisposition question
from the jury's purview." 156 F.3d at 12 (citation omitted)
(quoting Gifford, 17 F.3d at 469); see also id. at 11-12
("[W]illingness to commit the crime, although clearly relevant to
the jury's inquiry, is not sufficient by itself to mandate a
finding that he was predisposed."); Rodriguez, 858 F.2d at 816
("Although a jury might well find that Rodriguez's wiliness, and
the level of experience and enthusiasm which he subsequently
exhibited, were inconsistent with the claim of initial
unreadiness, such a finding would not be inevitable.").
f. Prior Sexual Interest in Children
As Pérez notes, the trial record contained "absolutely
no evidence that, aside from this virtual conversation, Mr. Pérez
had engaged, tried to engage, or would have considered engaging in
sex with a minor."12 In Gamache, we emphasized the importance of
the absence of evidence of prior similar conduct in meeting the
defendant's burden of production on lack of predisposition. See
12 As noted above in Section IV.A.2., the meaning of Pérez's
statements that "I started at 8" is ambiguous. If all inferences
are drawn in his favor, those statements do not constitute evidence
of prior sexual interest in children.
- 49 -
Gamache, 156 F.3d at 12 ("[T]here was no evidence presented that
Gamache had engaged in similar activities independent of this sting
operation. The jury could have relied on this evidence to find a
lack of predisposition . . . .").
Of course, to address the burden of production on the
predisposition issue, a defendant could introduce some evidence of
positive relationships with children, though Gamache makes clear
that the defendant need not introduce such evidence to meet that
burden. See id. Indeed, Hinkel offered evidence that he "had
raised two adult children and had not been accused of having an
inappropriate relationship with either of them." Hinkel, 837 F.3d
at 118. However, in Hinkel, there was contrary evidence that
Hinkel had sexual interest in children before the contact with the
government, in the form of cartoon images of adult sexual conduct
with children recovered from his computer. Id. at 122. Hinkel
challenged the admission of that evidence on appeal. Id. In
rejecting that claim, we recognized that the images were "probative
of Hinkel's predisposition" and may tend to show "sexual
inclination towards children." Id. (quoting United States v.
Chambers, 642 F.3d 588, 595–96 (7th Cir. 2011)). Still, even with
the record containing evidence of Hinkel's sexual inclination
towards children, we agreed with the district court that Hinkel
had provided enough evidence of lack of predisposition to mount a
- 50 -
"credible entrapment case." Id. at 118. Again, there was no such
evidence of Pérez's prior sexual interest in children.
3. Conclusion
As we have described, this case is strikingly similar to
Hinkel and Gamache. Agent Seig used the same tactics we saw in
those cases -- placing an ambiguous lure on an adults-only forum,
inviting the defendant who responded to the lure to engage in a
"bundled" sexual encounter with an adult and a child, and
repeatedly insisting that this sexual abuse was beneficial to the
child. Pérez responded similarly to Hinkel and Gamache --
enthusiastic interest coupled with a weak expression of
reluctance. And as in Gamache, the record at Pérez's trial
contained no evidence of any sexual interest in children prior to
the government's intervention.
In Hinkel, we stated that the facts "clearly" met the
defendant's "'modest' burden of making a prima facie showing that
there is some evidence both elements [of the entrapment defense]
are satisfied." Hinkel, 837 F.3d at 117; see also id. at 118
(stating that the evidence at Hinkel's trial supported "a credible
entrapment case"). In Gamache, we concluded that "appellant met
the dual burdens required for an instruction on entrapment, because
the evidence raises a reasonable doubt that the Government
improperly induced a citizen to commit crimes that he was not
predisposed to commit, yet crimes for which he was charged and
- 51 -
convicted." Gamache, 156 F.3d at 12. The district court ignored
our precedents when it decided a trial record containing strikingly
similar core facts did not warrant an entrapment instruction
because the defendant did not meet his burden of production on the
predisposition prong of the defense.
Tellingly, the government's brief on appeal does not
even mention Hinkel or Gamache, much less attempt to distinguish
those cases from the circumstances present here. The government's
primary argument is that Pérez cannot meet his burden on lack of
predisposition because he "jumped at the opportunity to 'play'
with the 11-year-old boyfriend." That position is obviously
foreclosed by our case law, and, if it influenced the district
court's decision to deny the entrapment instruction, it should not
have.
The dissent claims that comparing this case to Hinkel
and Gamache is like "saying apples and oranges are 'clearly and
obviously' the same because they both grow on trees in orchards."
To be sure, there are distinctions among the three cases, but all
three involve a mix of evidence -- some favorable to the entrapment
defense, some tending to disprove entrapment. Each case involved
statements reflecting eagerness and others reflecting reluctance.
Although those statements appeared in conversations which played
out across different time frames featuring different modes of
communication, and the specific facts of the cases do not perfectly
- 52 -
align, there is the significant overlap in the categories of facts
that we have described. The district court's failure to see that
overlap between this case on the one hand, and Hinkel and Gamache
on the other -- cases in which we stated the predisposition issue
needed to go to the jury -- was a clear error. Although there are
many varieties of apples, they are apples all the same.
C. Substantial Rights
Next, we ask whether the clear or obvious error affected
the defendant's substantial rights. By refusing to give an
entrapment instruction, the court denied Pérez an opportunity to
have the jury consider his primary defense. See United States v.
Benavidez, 558 F.2d 308, 309 (5th Cir. 1977). As we have discussed
at length, Pérez's entrapment defense, reviewed in the light most
favorable to him, as required by law, was plausible. There was a
reasonable probability that a rational jury could credit the
defense, even in the face of the government's attempt to disprove
the entrapment defense beyond a reasonable doubt. See United
States v. Benjamin, 252 F.3d 1, 9 (1st Cir. 2001) (stating that to
determine whether an error affected the defendant's substantial
rights, the court "must determine 'whether the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted [jury instruction]'" (quoting Neder v.
United States, 527 U.S. 1, 19 (1999))). Thus, Pérez's substantial
rights were affected.
- 53 -
D. Fundamental Fairness
Finally, we ask whether this error is one that
"impugn[ed] the fairness, integrity, or public reputation of the
criminal proceeding as a whole." United States v. Padilla, 415
F.3d 211, 221 (1st Cir. 2005). Our analysis under this final prong
of plain error review is "flexible . . . and depends significantly
on the nature of the error, its context, and the facts of the
case." United States v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir.
2000).
Entrapment is a judicially created defense reflecting a
recognition that "[m]anifestly, [the law enforcement] function
does not include the manufacturing of crime." Sherman, 356 U.S.
at 369 (citing Sorrells v. United States, 287 U.S. 435, 443
(1932)). Given the importance of the defense, erroneous or
confusing jury instructions regarding entrapment compromise the
fairness of a trial. E.g., United States v. Kopstein, 759 F.3d
168, 182 (2d Cir. 2014) (holding that misleading jury instructions
regarding entrapment, the defendant's "only viable defense,"
created so much confusion as to "call into question the fairness
and integrity of [the defendant's] conviction" (quoting United
States v. Rossomando, 144 F.3d 197, 201 (2d Cir. 1998))); United
States v. Burt, 143 F.3d 1215, 1219 (9th Cir. 1998); United States
v. Duran, 133 F.3d 1324, 1335 (10th Cir. 1998); Here, we did not
have an instruction that was problematic because it was confusing.
- 54 -
Rather, we had a complete failure to instruct the jury on the
defendant's primary defense. See Benavidez, 558 F.2d at 310.
Because of the court's refusal to give Pérez's requested
instruction, "the jury was not in a position to fairly evaluate
the defendant's case," see id., as it did not know that the
government was required to prove beyond a reasonable doubt that
either no improper inducement took place, or that Pérez was
predisposed to commit the offense. It is fundamentally unfair to
allow a jury to convict without instructing it on the law relevant
to a plausible entrapment theory that was "fairly raised" at trial.
Id.
This is not the common plain error case where the failure
of a defendant to properly preserve an objection for de novo review
means that the trial court never had an opportunity to rule on the
matter at issue. Pérez requested an entrapment instruction before
trial and renewed his request at a charging conference shortly
before the jury instructions were delivered. Although these steps
did not preserve Pérez's challenge under our circuit's law --
because he did not renew his objection after the court charged the
jury -- the fact remains that the court was fully advised that
Pérez sought the instruction, and objected to its denial, because
he intended to rely, and did in fact rely, on entrapment as a
- 55 -
defense.13 Yet, the court denied the request in a single conclusory
sentence, providing no explanation for its determination that
Pérez had not met his burden of production on the predisposition
prong of the defense.14
Pérez is now serving a sentence of 151 months' (twelve
and a half years') imprisonment based on the outcome of a trial at
which the court summarily and improperly excluded his primary
defense. Under these circumstances, the trial court's clear or
obvious error in refusing to present Pérez's entrapment defense to
the jury affected his substantial rights and undermined the
fundamental fairness of his trial. To correct that error, we must
remand for a new trial.
V.
Given that we are remanding for a new trial, we choose
to comment on one aspect of any new trial: the voir dire process.
As noted above, Pérez also failed to object on the record
13
when the judge invited objections immediately before instructing
the jury. Despite this omission, the trial record makes clear
that the district court was aware of Pérez's objection.
To the extent that it might be relevant to the fourth prong
14
analysis, we note that the retrial in this case will not require
a victim to endure a second trial. Obviously, there was no actual
victim of child sexual abuse in this attempt case. Cf. United
States v. Colon-Nales, 464 F.3d 21, 29 (1st Cir. 2006) ("Given the
unchallenged nature of the evidence in this case . . . the greater
threat to the 'fairness, integrity and public reputation of
judicial proceedings' would be to send this back for trial . . .
thereby requiring the carjacking and rape victim to testify
twice.")
- 56 -
See, e.g., United States v. Gonzalez-Maldonado, 115 F.3d 9, 13
(1st Cir. 1997) ("In order to give as much guidance as possible to
the district court, we also discuss some of the other claims that
are likely to resurface if there is a new trial."). Pérez insists
that there was error in the district court's handling of the voir
dire. We do not go that far. But the briefing has convinced us
that the court would be well-advised to explore the issue of anti-
gay bias more thoroughly than it did in the voir dire process
reflected in the record.
The court devoted only one question to the topic of anti-
gay bias, asking the panel: "Do you feel that you would not be
able to render a fair and impartial verdict based on the evidence
and my instructions if the defendant were homosexual or gay?" On
remand, the court should carefully consider Pérez's argument that
this single self-assessment question "was inadequate to permit
discovery of stereotypical and pejorative notions rooted in an
extremely relevant bias." As Pérez notes, this case raises
particular concerns about anti-gay bias not only because the
defendant is gay, but because of the graphic sexual nature of the
evidence and the repugnant but unfortunately widespread
prejudicial belief that gay men are likely to sexually abuse
- 57 -
children.15 Questions probing prospective jurors' actual bias
against gay men -- rather than their self-assessment of their
ability to be impartial at a criminal trial where the defendant is
gay -- would be more useful in identifying jurors who could not be
fair and impartial in dealing with the difficult facts of this
case.
Vacated and remanded.
- Concurring Opinion Follows -
See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 983 (N.D.
15
Cal. 2010) ("[S]tereotypes imagine gay men and lesbians as . . .
child molesters who recruit young children into homosexuality. No
evidence supports these stereotypes."), aff'd sub nom. Perry v.
Brown, 671 F.3d 1052 (9th Cir. 2012); Luke A. Boso, Dignity,
Inequality, and Stereotypes, 92 Wash. L. Rev. 1119, 1142-43 (2017)
(discussing manifestations of the false stereotype that gay men
are likely to be pedophiles).
- 58 -
LIPEZ, Circuit Judge, concurring. I write separately to
urge our court in a future en banc proceeding to abandon the rigid
and outdated interpretation of Rule 30(d) of the Federal Rules of
Criminal Procedure that we had to apply in this case. We are the
only circuit that -- without regard for the specificity or timing
of a party's initial objection to jury instructions -- deems that
objection forfeited if it is not repeated after the court instructs
the jury. See United States v. Roberson, 459 F.3d 39, 45 (1st
Cir. 2006). That preservation requirement serves no useful purpose
in the administration of justice, and it is premised on
practicalities that no longer exist.
To be clear, I do not raise this issue because of any
reservations about the strength of the majority's plain error
analysis in this case. Rather, I am concerned about the impact of
our existing rule on criminal defendants who cannot meet that
exacting standard in other instances where it is inappropriately
applied. Pérez's case provides a helpful illustration of why the
rule requiring a pointless post-charge objection is misguided.
Before his trial commenced, Pérez filed an ex parte
request for an entrapment jury instruction. At the close of
evidence in the two-day trial, the parties participated in an
unrecorded charging conference. Even without a record of the
conference, it is clear from the district court's docket entry
that Pérez renewed his request for an entrapment jury instruction.
- 59 -
The district court denied the instruction, stating: "The ruling is
based on the arguments presented by the government and defendant's
response during the charging conference in connection with
predisposition."16 Following the conference, the attorneys gave
their closing arguments and the court then proceeded to charge the
jury. It did not invite objections from the parties, and Pérez did
not raise an objection.
Under our court's interpretation of Rule 30(d), Pérez
forfeited his claim that he was entitled to an entrapment
instruction, subjecting that claim to plain-error review. See
Fed. R. Crim. P. 52(b). In other words, our law faulted Pérez for
failing to reiterate an objection that had just been rejected at
the charging conference. See United States v. Meadows, 571 F.3d
131, 146 (1st Cir. 2009) ("Objections registered during pre-charge
hearings are insufficient to preserve the issue." (quoting
Roberson, 459 F.3d at 45)).
Rule 30(d) does not require that interpretation. It
states: "A party who objects to any portion of the instructions or
to a failure to give a requested instruction must inform the court
16 Before instructing the jury, the court asked the parties
if there were objections to the instructions. Pérez did not object
at that time, but that lack of objection would not matter because
our precedent requires the objection to be made after the jury is
instructed. See Roberson, 459 F.3d at 45. Even if Pérez had
objected when invited to do so by the judge, his claim would still
be considered forfeited and subject to plain error review on
appeal. Id.
- 60 -
of the specific objection and the grounds for objection before the
jury retires to deliberate." By its terms, then, the rule requires
only that the party's objection be specific, explained, and
presented before the jury deliberates. Pérez satisfied each of
those requirements.
Our rule insisting on a post-charge objection under Rule
30(d) has its origins in a decades-old, out-of-circuit precedent
-- authored by one of our First Circuit colleagues sitting by
designation -- that involved the similar requirement in civil cases
to timely raise instructional challenges. See Fed. R. Civ. P. 51.
In that 1966 case, Judge Aldrich observed that "[t]he duty imposed
upon counsel of 'stating distinctly the matter to which he objects
and the grounds of his objection' cannot normally be performed
until the charge has been heard in its entirety." Dunn v. St.
Louis-San Francisco Ry. Co., 370 F.2d 681, 684 (10th Cir. 1966)
(Aldrich, J. sitting by designation) (quoting then-current
language of Fed. R. Civ. P. 51). Based on that view -- i.e., that
specificity will likely be infeasible before counsel hears the
instructions as given -- the panel in Dunn concluded that an
instructional objection ordinarily will be deemed preserved only
if it is voiced after the court charges the jury. See id. We
subsequently adopted that post-charge preservation rule in our
circuit, including for criminal cases governed by Rule 30(d). See
United States v. Leach, 427 F.2d 1107, 1113 (1st Cir. 1970) (citing
- 61 -
Dunn as precedent for concluding that a claim for a jury
instruction was forfeited where counsel requested the instruction
but did not renew his objection after the instructions were
delivered). While Dunn allowed for limited exceptions to the
requirement that objections be made after the jury charge, see 370
F.2d at 684, the First Circuit requires a post-charge objection in
all criminal cases.17 See United States v. Coady, 809 F.2d 119,
123 (1st Cir. 1987) (rejecting an argument that a claim regarding
jury instructions could be preserved through a pre-charge
objection, stating, "[t]hat counsel may have discoursed upon the
nature of his theory at some time prior to the giving of the charge
will not excuse noncompliance with the express mandates of Rule
30").
The Dunn rationale for requiring a post-charge objection
in most cases may have been apt when it was articulated more than
a half-century ago. The judges of that era did not routinely give
lawyers advance copies of their proposed instructions for
discussion and debate at charging conferences. Indeed, even during
In a civil proceeding, the trial court has been required
17
since 2003 to "inform the parties of its proposed instructions and
proposed action on the requests [for instructions] before
instructing the jury and before final jury arguments," Fed. R.
Civ. P. 51(b)(1) (emphasis added), and it "must give the parties
an opportunity to object on the record and out of the jury's
hearing before the instructions and arguments are delivered," id.
at (b)(2). The rule states that an objection is timely if made
"at the opportunity provided under Rule 51(b)(2)."
- 62 -
my tenure as a Maine state trial judge two decades later -- in the
late 1980s and early 1990s -- most judges did not preview
instructions with counsel in their entirety before delivering
them. Hence, the general practice supported the assumption that
parties ordinarily could not object with the specificity required
by Rules 51 and 30(d) until they heard the instructions as
delivered.
That is simply not the current reality. Today, attorneys
are well-positioned to make specific objections to assist the judge
in correcting errors before he or she charges the jury. The
court's ability to distribute proposed instructions in advance and
to easily revise them on the computer means that the attorney's
obligation to object with specificity can now be -- and ordinarily
is -- performed before "the charge has been heard in its entirety."
Dunn, 370 F.2d at 684. My experience as an appellate judge reading
trial records tells me that, as a result of this current practice,
surprises in the instructions as given are rare. Thus, by
maintaining our rule, we impose the harsh consequence of plain-
error review without justification.
We are an outlier in requiring a post-charge objection
in criminal cases under all circumstances. Every other circuit
that has considered the sufficiency of a pre-charge objection
employs a more flexible approach, in which a pre-charge objection
is evaluated for its adequacy in meeting Rule 30(d)'s requirements
- 63 -
to provide the trial court with specific notice of an asserted
instructional error. See United States v. Grote, 961 F.3d 105,
115 (2d Cir. 2020) (an objection prior to jury charge is not
forfeited if "taking further exception under the circumstances
would have been futile" (quoting United States v. Rosemond, 841
F.3d 95, 107 (2d Cir. 2016)); United States v. Russell, 134 F.3d
171, 178 (3d Cir. 1998) ("[T]he crux of Rule 30 is that the district
court be given notice of potential errors in the jury instructions,
not that a party be 'required to adhere to any formalities of
language and style to preserve his objection on the record.'"
(quoting United States v. O'Neill, 116 F.3d 245, 247 (7th Cir.
1997)); United States v. Hollinger, 553 F.2d 535, 543 (7th Cir.
1977) ("[S]pecific and distinct objections voiced in an earlier
instructions conference held in the presence of a court reporter
will be considered timely under [Rule 30(d)] . . . . [W]e shall
henceforth allow counsel to incorporate [objections] by
reference."); United States v. Kessi, 868 F.2d 1097, 1102 (9th
Cir. 1989) (parties need not object following the instructions if
doing so would be a "pointless formality"); United States v.
Kottwitz, 614 F.3d 1241, 1270 (11th Cir. 2010) (objection is
preserved so long as it is "sufficient to give the district court
the chance to correct errors before the case goes to the jury"),
opinion withdrawn in part on denial of reh'g on other grounds, 627
F.3d 1383 (11th Cir. 2010); see also United States v. McDonnell,
- 64 -
792 F.3d 478, 504 & n.15 (4th Cir. 2015) (noting that the appellant
objected at a pre-charge conference and should have repeated his
objection after the instructions were delivered, but still
applying harmless error review, rather than plain error), vacated
on other grounds, 136 S. Ct. 2355 (2016);18 United States v.
Bornfield, 184 F.3d 1144, 1146 (10th Cir. 1999) (stating that a
party is "obligated to object on the record before the jury retired
to preserve his objection for appellate review" and acknowledging
that the objection might properly occur at a pre-charge
conference).
That flexible approach not only fulfills the notice
purpose of Rule 30(d), but it also aligns with our forfeiture
doctrine more broadly. Issues not raised in the trial court are
deemed forfeited, and subject to plain error review on appeal, to
prevent a party from wasting judicial resources and undermining
finality by "sandbagging" the court. See Puckett v. United States,
556 U.S. 129, 134 (2009) ("[T]he contemporaneous-objection rule
Indeed, on further review, the Supreme Court also applied
18
a harmless error analysis and vacated the conviction on the ground
that an error in the jury instructions was not harmless. See
McDonnell, 136 S. Ct. at 2375. The Supreme Court did not comment
on the timing requirements of Rule 30(d) or explicitly affirm a
flexible application of the rule. Although McDonnell is not
binding intervening precedent that would require us to abandon our
current rule, see United States v. Walker-Couvertier, 860 F.3d 1,
8 (1st Cir. 2017), it does give tacit approval to review for
harmless error rather than plain error when an appellant objected
at a pre-charge conference but not after the instructions were
delivered.
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prevents a litigant from 'sandbagging' the court -- remaining
silent about his objection and belatedly raising the error only if
the case does not conclude in his favor."); United States v.
Correa-Osorio, 784 F.3d 11, 22 (1st Cir. 2015) (stating that the
plain error rule "(hopefully) deters unsavory sandbagging by
lawyers (i.e., their keeping mum about an error, pocketing it for
later just in case the jury does not acquit) and gives judges the
chance to fix things without the need for appeals and new trials").
Our obsolete interpretation of Rule 30(d) does nothing to prevent
"sandbagging." Where, as in this case, a defendant files a written
request for an instruction, and argues for that request at a
charging conference, he is not "sandbagging" when he raises that
same issue on appeal. He has clearly brought the issue to the
trial court's attention and given the court an opportunity to
correct the instructions.
Indeed, from a practical standpoint, an objection made
during a charging conference, before the instructions have been
delivered, should be preferred to a post-charge objection. The
earlier notice provides more timely opportunity for the court to
correct any errors. See Hollinger, 553 F.2d at 542-43
("Ordinarily, trial judges will derive considerable benefit from
a serious exchange of views by opposing counsel regarding the
proper formulation of the applicable rules of law before they must
charge the jury."). In addition, when a request regarding jury
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instructions has been discussed in detail at a charging conference,
and the court has ruled, there is no advantage to anyone for
lawyers to persist with the same objection. To the contrary, such
persistence can be awkward for counsel and off-putting for the
court. See United States v. Toribio-Lugo, 376 F.3d 33, 41 (1st
Cir. 2004) ("To do her job, a lawyer must be forceful, but she
also must handle her relationship with the presiding judge with
care."); United States v. Kelinson, 205 F.2d 600, 601-02 (2d Cir.
1953) ("[Rule 30(d)] does not require a lawyer to become a
chattering magpie.").
Importantly, I am not suggesting that a party's failure
to lodge an objection after the court has delivered the jury charge
should never result in forfeiture of the claim on appeal.
Inevitably, some pre-charge objections will be insufficiently
specific, or inadequately explained, and will therefore not
fulfill the notice objective of Rule 30(d). But Rule 30(d) does
not require us to demand pointless repetition of objections that
were distinctly raised and decisively denied.
In short, our court's outdated, inflexible approach to
Rule 30(d) neither advances the purpose of the rule nor serves the
interests of justice and, hence, it poses an unjustifiable barrier
to plenary appellate review of fully preserved objections. We
should replace our outmoded instructional-error doctrine with the
flexible approach that -- for good reason -- is now the prevailing
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view. In other words, like our sister circuits, we should
recognize that a pre-charge objection may preserve a jury
instruction issue for appellate review if the objection was
sufficiently specific to give the trial court notice of the claimed
error and repetition of the objection post-charge would be a futile
exercise.
- Concurring Opinion Follows -
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BARRON, Circuit Judge, concurring. I share the concern
that Judge Lipez expresses about the way that our precedent
currently requires us to construe Rule 30(d) of the Federal Rules
of Criminal Procedure. The text of the rule, his concurrence
points out, does not compel the rigid procedure for preserving
objections to jury instructions that our case law requires. There
may often be benefits to voicing objections to instructions after
the charge to the jury has been given. But, they are not manifest
in every case. Indeed, the case at hand exemplifies the point.
The sole ground that the District Court gave at the charging
conference for denying the requested instruction here was that the
evidence developed at trial had failed to provide a factual basis
for giving it. Nothing about the charge itself could have called
that ruling into question. Yet, our precedent still requires that
we treat this defendant's failure to seek reconsideration of that
ruling as if it were a failure to have requested the instruction
at all. See United States v. Baltas, 236 F.3d 27 (1st Cir. 2001).
- Dissenting Opinion Follows -
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KAYATTA, Circuit Judge, dissenting.
The majority's analysis hinges crucially on the
assertion that, as to the matter of predisposition, this case is
so like Hinkel and Gamache that the need for an entrapment
instruction was "clear or obvious." Respectfully, I cannot see
how this is so in this case.
Here is what Hinkel said when he first learned that a
15-year-old was involved: "Sounds very naughty. I am concerned
about her age since legally she should be 16 or older." It then
took a month before the continued enticement ripened into a planned
meeting. Here, by contrast, is what Pérez said upon first learning
that an eleven-year-old was involved: "Mmmm yes." Within three
days Pérez was messaging, "I want your boyfriend." And within
five days from the first message, the meet was on.
There is more. Hinkel offered affirmative evidence that
he had never sought a relationship with someone not of legal age.
Pérez offered no such evidence. Rather, when the agent asked Pérez
at the outset of their communications "what age do you like?,"
Pérez replied, "The younger the better. I don't discriminate. I
started at 8. Hehehe. So you tell me." And when asked "do you
like really young guys?," he replied: "Yes. Age? I started
at 8." So while Hinkel was saying he never even looked for sex
with a minor, Pérez was highlighting a nondiscriminatory track
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record. And he was clearly saying in context that eight years old
was not too young.
Gamache is even further removed. The defendant in
Gamache initially expressed interest solely in an adult
relationship. Only after "the Government's insistence and artful
manipulation" over the course of eight months did he become ready
to meet the supposed victims, and even then he was saying "this
will be a new experience for me." United States v. Gamache, 156
F.3d 1, 6, 10 (1st Cir. 1998). Pérez, conversely, expressed eager
interest immediately. And unlike Hinkel and Gamache, he offered
no evidence suggesting a lack of predisposition.
The majority's effort to avoid the stark pre-
dispositional admission by Pérez at the very outset of his
exchanges with the agent warrants particular scrutiny. Ignoring
Pérez's express assurance that he likes them the "younger the
better," all the majority can do is claim that there is some
ambiguity about what the agent meant when he subsequently referred
to his own age. And the majority's claim that it is not obvious
what Pérez was saying is twice-flawed: It certainly seems obvious
he was indeed saying he likes them "the younger the better;" and,
in any event, I do not see how it was possibly plain error for the
trial court to have read Pérez's statement exactly as I do, i.e.,
as a frank, un-coaxed profession of the precise predisposition at
issue. And since there is zero contrary evidence, I simply cannot
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see how it was also plain error to conclude that Pérez failed to
generate a sufficient claim of entrapment to get to a jury. See
Gamache, 156 F.3d at 9 ("The defendant carries the initial burden
of producing some evidence of both the Government's improper
inducement, and the defendant's lack of predisposition to commit
the alleged offense, so as to 'raise a reasonable doubt as to
whether he was an unwavering innocent rather than an unwavering
criminal.'" (quoting United States v. Joost, 92 F.3d 7, 12 (1st
Cir. 1996)) (second emphasis added)); see also id. ("[T]he court's
function is to examine the evidence on the record and to draw those
inferences as can reasonably be drawn therefrom, determining
whether the proof, taken in the light most favorable to the defense
can plausibly support the theory of the defense." (first emphasis
added)).
The bottom line is that the majority significantly errs
in comparing Hinkel and Gamache to this case by noting the
similarities while ignoring or downplaying the very material
differences. The resulting reasoning is like saying apples and
oranges are clearly and obviously the same because they both grow
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on trees in orchards. I would rule that it was not clear or
obvious that an entrapment instruction was required in this case.19
19 I do agree, however, with my colleague's concurrences that
we should revisit our rule on preserving objections to jury
instructions. As ably explained, our rule is not derived from the
text of Rule 30(d), no longer fits practice, and is apt to produce
unfair results. I also agree with Part V of the majority opinion.
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