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Refusal to Allow Entrapment Defense Leads to Reversal in Sting Case

October 26, 2021

The Court found the defendant’s entrapment defense was valid, resulting in a new trial and the vacating of his conviction and 151-month sentence.

The First Circuit Court of Appeals reversed the defendant’s conviction in a federal internet sting case where the trial judge refused to instruct the jury on the defense of entrapment. The appeals court held that there was sufficient evidence for a jury to find that the police officer induced the defendant to commit the crime.

In United States v. Perez-Rodriguez, the defendant was indicted in federal court for the offense of attempted enticement of a minor. He was arrested as a result of an internet sting operation where an officer created a fake profile on Grindr, a gay adult dating site, pretending to have a friend who was a minor. The defendant began communicating with the officer and was asked whether he wanted to have sex with him along with “the friend” who was only 11 years old.

The two of them made arrangements to meet but they agreed that they would leave “the friend” at home. They agreed that after meeting, the defendant would follow him to go meet the minor. The idea was that the three of them would have sex together.

At trial, the defense made a request for a jury instruction on entrapment and renewed the request during the charge conference. The trial court denied the request, stating that “the evidence presented at trial did not justify an entrapment instruction.”

Preserving Entrapment Issue for Appeal

In determining the appropriate standard of review, the Court first considered whether defense counsel properly preserved the issue for appeal. The rule in the First Circuit is that any challenge to the jury instructions is waived unless the party expressly objects to the instructions “after the judge has charged the jury.”

The Court noted that while counsel did request the entrapment instruction on two occasions, and argued in favor of it at the charge conference, counsel did not state any formal objection after the judge instructed the jury. Therefore, regardless of the fact that the arguments for the instruction had been timely made prior to and during trial, the claim on appeal would be subject to the more stringent “plain error” standard as a result of counsel’s failure to “lodge a post-charge objection.”

Did the Evidence Support an Entrapment Instruction?

To establish entrapment, the evidence must be sufficient for a jury to find (1) that the defendant was improperly induced by the police to commit the offense, and (2) that he was not predisposed to commit the crime before his encounter with the officer.

Regarding the first issue, the Court explained that the officer’s idea to combine the offer for adult sexual activity with the suggestion of unlawful sexual activity involving a minor could be considered a form of improper inducement. It cited to prior decisions where the Court held that the bundling of legal sex with illegal sex into “a package deal” can take advantage of a defendant who did not have an intent to engage in criminal conduct. It was also noted that Grindr is an adults-only dating app.

On the question of predisposition, the Court held that the evidence, when viewed in favor of the defendant, was sufficient for a rational jury to find that he was not predisposed to committing the crime. It pointed out that the officer first suggested the idea of having sex with a minor, there was no evidence of the defendant engaging in such behavior in the past, the defendant showed some reluctance when asking the officer to leave the minor at home for the initial meeting, and the defendant had a clear sexual interest in the adult before any suggestion of the minor was made.

Based on this, the Court concluded that the evidence did support the giving of the entrapment instruction.

Did the Trial Court Commit Plain Error?

The Court noted at the outset that “the plain error standard is a difficult burden for any appellant to meet.” The defendant must show not only that the error was obvious, but that it affected his substantial rights and undermined his right to a fair trial.

First, it was held that the error should have been obvious in light of the fact that there were at least two prior decisions in which the Court ruled in similar situations that the defense was entitled to an entrapment instruction. The Court noted that neither the judge nor the government even cited these prior cases or tried to distinguish them.

As to whether the error affected the defendant’s right to a fair trial, the Court held that since the defendant’s entrapment defense was valid, and was his only defense at trial, the refusal to give the instruction greatly affected the outcome. Had the jury been given the entrapment instruction, it would have had a legal basis to find the defendant not guilty. Without it, there was no other logical conclusion for the jury other than a guilty verdict.

As a result, the Court found that the defendant was entitled to a new trial and it vacated his conviction and 151-month sentence.

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