United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1758
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Louis Edward Cooke, *
*
Appellant. *
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Submitted: December 16, 2011
Filed: April 10, 2012
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Louis Edward Cooke of one count of attempted sex
trafficking of a minor, and one count of coercing and enticing a minor to commit a
sexual act, in violation of 18 U.S.C. § 1591(a)(1) and § 2422(b). The district court1
sentenced him to 120 months on each count, concurrently. Cooke appeals arguing
the court erred in refusing to give an entrapment instruction, improperly admitting
Rule 404(b) evidence, and dismissing a juror immediately before deliberation.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
Law enforcement placed an internet ad while investigating sex-trafficking of
children. The ad had the caption “Young and Irresistible.” It read:
More fun than a ride at 6 flags.
Must see to believe these two sisters.
Very cute and will make your dreams come true.
The next day, early in the morning of June 10, 2010, Cooke answered the ad by an
email requesting “info please and pics.” In mid-afternoon, the officers emailed a
digitally-morphed photo of an underage girl and quoted prices for a half-hour or an
hour with her. Cooke replied “Okay, I would like to set something up!!” During the
rest of the afternoon and evening, 11 more emails were exchanged between Cooke
and the officers who were posing as pimps for the underage girls. Cooke initiated
nine of these (asking for a picture and info on the other sister in one of these). Cooke
also had five phone contacts with the officers. He repeatedly tried to negotiate a
cheaper price. During one phone conversation, the “pimp” told Cooke that his car
would not start and asked Cooke to bring jumper cables to get it started (so the
“pimp” would not lose his job). Later, in a call he initiated, Cooke offered to pay a
reduced rate and asked to speak with “Sabrina” (he had previously received pictures
and the ages of two girls–“Sabrina,” age 15, and “Katie,” age 13). A female officer
pretending to be “Sabrina” talked to him briefly. Then the “pimp” gave directions to
a house where he was to meet “Sabrina.” The house was equipped with video/sound
equipment for the undercover operation. At 10:30 p.m., the officers called Cooke (the
only call they initiated) to determine if he really intended to come to the house (the
officer said if Cooke would help him jump his car, he could get a reduced fee for
“Sabrina”). Cooke came to the house around 11:15 p.m. He entered the house while
talking to the “pimp.” During the conversation, Cooke took his wallet out of his
pocket and said he wanted to have his time with “Sabrina” in her bedroom. After
agreeing to pay $60 for 15 minutes, he was arrested. (Cooke had $61 in his wallet.)
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Cooke testified he thought the ad was a hoax and “pretended” to be interested
to “pull their chain.” He said he came to the house to determine if “Sabrina” existed,
insisting if she were underage, he would not have engaged in sexual activity with her.
He also said he came to assist with starting the car.
I.
At the jury-instruction conference, Cooke requested an entrapment instruction,
which the government opposed. After argument, the judge denied the instruction.
The refusal of a proffered entrapment instruction is a denial of a legal defense.
United States v. Young, 613 F.3d 735, 744 (8th Cir. 2010). A denial of an instruction
on entrapment is reviewed de novo. United States v. Herbst, 666 F.3d 504, 511 (8th
Cir. 2012).
A defendant is entitled to an entrapment instruction only if “there is sufficient
evidence from which a reasonable jury could find entrapment.” Id. There are two
elements to an entrapment defense: government inducement of the crime, and a
defendant’s lack of predisposition to commit the criminal offense. Id. The court is
not required to give an entrapment instruction if there is sufficient evidence that the
defendant has a predisposition to engage in the criminal act. Id. at 511-12, citing
United States v. Berg, 178 F.3d 976, 980 (8th Cir. 1999).
Cooke emphasizes that the undercover officer initiated the fourth phone call
at 10:30 p.m., arguing this is sufficient to require the entrapment instruction. The
officer testified he called to determine if Cooke was coming to the undercover house
(otherwise the operation could be shut down for the night). This call cannot be
considered in isolation. See United States v. Herbst, 666 F.3d at 512. Cooke made
the first contact with the officers. Throughout the five phone calls and 14 emails, he
repeatedly sought assurances that he was not dealing with law enforcement. After
learning the “girls” were 13 and 15 years old, he still requested photos and a meeting.
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Several times he said he didn’t have enough money and asked for a reduced rate, to
pay part of the fee later, or for a “special.” In one call he asked to speak with one of
the girls. He drove to the undercover house, requesting directions en route. Entering
the house, he took his wallet out of his pocket and told the undercover officer that
“for privacy” he wanted to use the bedroom, rather than the couch. The evidence
shows that Cooke was predisposed to commit the crime. The court did not err in
refusing to give the entrapment instruction.
II.
During its case, the government introduced into evidence several pages of
Cooke’s email messages. Some were from Cooke to unidentified females, some
bragged about sexual exploits to friends, and some were a stream of emails between
Cooke and A. Roland. In April 2009, Cooke answered a Craigslist ad from a local
college student (Roland). They exchanged sexually explicit emails. Roland asked
Cooke, “I am 16 is that okay?” Cooke replied that “thats cool that ur young, but i
don’t want u to narc.” There is no evidence Cooke did anything but email with
Roland.
Cooke complains on appeal that this evidence was hearsay. He did not object
at trial based on hearsay. Unobjected-to hearsay is reviewed for plain error. United
States v. Robertson, 606 F.3d 943, 957 (8th Cir. 2010). To succeed on plain error
review, Cooke must show the hearsay evidence prejudiced his substantial rights and,
if uncorrected, would result in a miscarriage of justice. See id. However, Roland’s
statement–“I am 16 is that okay?"–is not hearsay, because it was not offered for its
truth, but to provide context for Cooke’s response that it is “cool” to have sex with
a minor as long as she would not “narc.” See United States v. Bermea-Boone, 563
F.3d 621, 626 (7th Cir. 2009) (out-of-court statements not offered for their truth, but
to provide context for defendant’s admissions and to make them intelligible to the
jury, are not hearsay); United States v. Looking Cloud, 419 F.3d 781, 787-88 (8th
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Cir. 2005) (rumor that murder victim was an informant held not hearsay because it
gave jury context for defendant’s motive). Cooke’s response is an admission, which
is not hearsay. See United States v. Porter, 544 F.2d 936, 938-39 (8th Cir. 1976)
(defendant’s out-of-court statement to detectives that he had dealt in narcotics
admissible as admission of party-opponent under F. R. Evid. 801(d)(2)(A)).
Admission of the Roland-email evidence under Rule 404(b) is reviewed for
abuse of discretion. United States v. Winn, 628 F.3d 432, 436 (8th Cir. 2010). Rule
404(b) prohibits admission of evidence of other crimes or acts to prove the propensity
of the accused to commit criminal acts. United States v. Turner, 583 F.3d 1062,
1065 (8th Cir. 2009). Such evidence may be admitted to show knowledge or intent
if relevant to an issue at trial, similar in kind and time to the crime charged, supported
by the evidence, and its probative value outweighs its prejudicial value. Id. at 1065-
66.
The Roland-email evidence was relevant to the issue at trial (Cooke’s intent,
or lack of mistake, in arranging sex with a minor), similar in kind and type to the
charge, not too remote in time (about 14 months), and its probative value was not
outweighed by any prejudice to Cooke’s substantial rights. See id. Also, the district
court gave a limiting instruction that diminished the danger of prejudice. See United
States v. Strong, 415 F.3d 902, 906 (8th Cir. 2005). The district court did not abuse
its discretion by admitting the challenged Rule 404(b) evidence.
III.
During voir dire, the district court admonished the panel to answer questions
truthfully. No panel members claimed knowledge of the parties, the witnesses, or the
lawyers. At the end of the second day of trial, Juror No. 11 asked the judge if she
could ask a question. She told the judge (outside the hearing of the jury but with
attorneys present) that she had the same employer as the witness, Cooke’s mother.
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The judge asked her if continuing to serve would make any difference to her. She
responded “No, but I am uncomfortable with it.” The judge stated that they would
revisit the issue “first thing” the next day. The next morning, Cooke’s attorney told
the judge he interpreted the juror’s comments to mean that she was “leaning toward
a government verdict” and that “we really don’t have much of a problem with it as far
as–if she’s excused.” The judge advised that he was inclined to dismiss the juror, but
did not want to do it until time to excuse the alternate. After the jury-instruction
conference, the judge said he was excusing Juror No. 11 because she was
uncomfortable serving on the jury. The judge told the parties that “as I understand
it, the defendant does not object, the Government does object.” Cooke’s attorney
made no response to the judge’s understanding. After closing arguments, the judge
asked Juror No. 11 to remain seated, while the others retired to deliberate.
Cooke argues on appeal that the district court erred in dismissing Juror No. 11.
Cooke has, however, waived any challenge to this dismissal. Waiver is the
“intentional relinquishment or abandonment of a known right.” United States v.
Olano, 507 U.S. 725, 733 (1993). By saying that Cooke did not have a problem with
excusing Juror No. 11 (because she favored the government), and by not responding
to the judge’s understanding that he did not object to Juror No. 11’s dismissal, Cooke
waived any right to challenge that dismissal. See United States v. Booker, 576 F.3d
506, 511 (8th Cir. 2009). Waived claims are unreviewable on appeal. Id.
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The judgment is affirmed.
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