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Seventh Circuit: Defendant Entitled to Present Entrapment Defense Where ‘Some Evidence’ Exists of Government Inducement and Lack of Predisposition to Commit Crime

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit held that Robert Shawn Anderson was entitled to present his entrapment defense to the jury because there was some evidence that the Government induced him to commit the crime and some evidence that he lacked any predisposition to commit the crime charged.

On Valentine’s Day 2020, the FBI initiated “Cupid’s Arrow,” a sting operation designed to identify and arrest child predators. The FBI altered the photograph of a 30-year-old woman to make her appear much younger and then used it to create a fictional profile for an 18-year-old woman named “Bailey” on an online dating application used by adults to facilitate meetings for sex. The dating app restricts users to those who claim they are 18 years of age or older.

Anderson and an FBI agent posing as Bailey exchanged nearly 300 text messages over a two-day period. For two days, the two discussed sex, mostly through euphemisms, while Anderson still believed he was communicating with an 18-year-old.

Eventually, Bailey revealed that she was actually 15 years old. Anderson expressed reluctance upon learning that detail, saying that he feared going to prison and leaving his young daughter. Nevertheless, the two exchanged more pleasantries, and “Bailey” suggested that the two of them meet for sex. In total, the agent posing as Bailey would directly request sex with Anderson at least 11 times.

Anderson did not respond to Bailey’s claim of being 15 by immediately terminating the conversation. He made several “disturbing comments,” asking her how she liked sex, was she on any kind of protection, and asked her to send him a photo of her breast. But he repeatedly expressed reluctance at meeting with Bailey, citing the fear of going to prison and being separated from his young daughter. Each time he did, Bailey would press him to come to her house, promising not to tell anyone. When Anderson offered to simply take “Bailey” on a ride, the agent clarified that Bailey was “not looking to just hang out.” Near the final exchange, Anderson again told Bailey that he was worried about going to prison and said “I’m sure you can understand that,” to which the agent responded “I do. just wish you would have told me earlier. I was excited. but I get it. good luck.”

Anderson finally agreed to meet Bailey, conditioned on it being in a public place at a nearby gas station. When he arrived, he was arrested and ultimately charged with attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). The Government moved in limine to bar an entrapment defense at trial. The U.S. District Court for the Central District of Illinois, after explicitly weighing the evidence for and against the defense, granted the motion. Anderson took the case to trial without an entrapment jury instruction; he was found guilty and appealed.

The Court observed that “[e]ntrapment is a defense to criminal liability when the defendant was not predisposed to commit the charged crime before the intervention of the government’s agents and the government’s conduct induced him to commit it.” United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014) (en banc). Substantively, the doctrine of entrapment has two distinct elements: (1) government inducement and (2) a lack of predisposition. Id.

The Mayfield Court clarified the legal standard for presenting an entrapment defense by holding that a defendant who offers “some evidence” of each element of the defense is entitled to have the defense submitted to the jury. Both elements are rooted in Supreme Court decisions dating back almost a century. See Jacobson v. United States, 503 U.S. 540 (1992); Sherman v. United States, 356 U.S. 369 (1958); Sorrell v. United States, 287 U.S. 435 (1932).

The Mayfield Court explained inducement as follows: “Conduct by the government’s agents amounts to inducement if, considering its character and the factual context, it creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government’s persuasion.” But it requires more than that the Government simply “solicited, suggested, or created the ‘ordinary’ opportunity to commit the crime.” Mayfield. It requires “the character and degree of the government’s persistence or persuasion, or the nature of the enticement or reward” to be more than the typical enticements and temptations the crime or criminal actors pose to a defendant. Id.

The Mayfield Court further explained that “ordinary” means “something close to what unfolds when a sting operation mirrors the customary execution of the crime charged.” So going beyond ordinary, “inducement means government solicitation of the crime plus some other government conduct….” Id. According to the Mayfield Court, “other conduct” may be: (1) repeated attempts at persuasion, (2) fraudulent representations, (3) threats, coercive tactics, or harassment, (4) promises of reward beyond that inherent in the customary execution of the crime, (5) pleas based on need, sympathy, or friendship, or (6) any other conduct by government agents that creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government’s efforts. Additionally, although there’s no set “minimum number of times the government must invite the defendant to commit the crime” for purposes of factor (1) above, the number of overtures will not be ignored. United States v. Barta, 776 F.3d 931 (7th Cir. 2015).

The second element for an entrapment defense is predisposition, which “refers to the likelihood that the defendant would have committed the crime without the government’s intervention, or actively wanted to but hadn’t yet found the means.” Mayfield. Predisposition doesn’t encompass urges, according to the U.S. Supreme Court, which explained that “a person’s inclinations and fantasies … are his own and beyond the reach of government.” Jacobson v. United States, 503 U.S. 540 (1992). Also, for entrapment purposes, the focus is on the defendant’s predisposition “to commit the crime – not just any crime.” United States v. Russell, 411 U.S. 423 (1973).

The Court explained that the focus is “on the defendant’s circumstances before and at the time the government first approached him with a proposal to commit the crime.” Mayfield In examining the defendant’s predisposition at those points in time, courts examine: (1) the defendant’s character and reputation, (2) whether the government initially suggested the criminal activity, (3) whether the defendant engaged in the criminal activity for profit, (4) the nature of the inducement or persuasion by the government, and (5) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion. Id. The Court stated that the government overcoming the defendant’s reluctance is the most significant factor. Id.; United States v. Pillado, 656 F.3d 754 (7th Cir. 2011); United States v. Theodosopoulos, 48 F.3d 1438 (7th Cir. 1995).  

The predisposition factors help courts estimate the likelihood the defendant would have committed the crime if left to his own devices. Mayfield. The predisposition examination is “not psychological” but “chiefly probabilistic.” United States v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994) (en banc). It’s irrelevant why the defendant was reluctant – that is, moral qualms or fear of punishment – the only thing that matters is that the defendant was, indeed, reluctant. See Mayfield

Turning to the present case, the Court ruled that there was some evidence of both presence of inducement and absence of predisposition. The messages show some evidence of Anderson’s reluctance and lack of predisposition as well as the Government’s “subtle and persistent persuasion,” according to the Court.

The Court determined that a jury could have found inducement by the Government agent’s persistent requests for a sexual encounter after she had falsely represented herself to be a 15-year-old girl, even after Anderson had expressed reluctance and fear of going to prison and being separated from his daughter. Further, a jury could have found lack of predisposition. Anderson had no prior criminal record of this kind (his record consisted of a DUI and trespassing charges 20 years ago). There was no evidence that he had ever sexually abused his three-year-old daughter nor any evidence to show he had any interest in underage girls.

The Court stated that the District Court erred by weighing the evidence of Anderson’s continuance in the sexual messaging after the agent represented herself to be 15; his requesting a photo of her breasts; etc. versus the agent’s persistent requests for a sexual encounter. Under Mayfield, it is for the jury – not the court – to weigh the evidence. When determining whether an entrapment instruction is to be given, the trial court’s discretion is limited to discerning whether there is anything in the evidence, viewed in the light most favorable to the defendant and construing the facts in his favor, that could support a jury’s finding of entrapment, the Court explained.

While the facts of this case did not demonstrate entrapment as a matter of law requiring reversal and dismissal, see Jacobson; Barta, the evidence was such that a jury could make a finding of entrapment. Thus, the Court ruled that Anderson was entitled to present the entrapment defense to the jury.

Accordingly, the Court reversed the judgment of the District Court and remanded for a new trial in which Anderson should be permitted to present his entrapment defense. See: United States v. Anderson, 55 F.4th 545 (7th Cir. 2022). 

Writer’s note: This case is a prime example of our police state’s overreach. The Government’s specious reason for “Cupid’s Arrow” was to “apprehend child predators.” While predation of children is a serious offense, it begs the question as to why the FBI logged onto an ADULT dating application? Child predators actively seeking children roam places where children are likely to be present. If I’m a bass fisherman, I don’t drop my line in the bathtub. This case is but one more of innumerable cases where the Government creates a crime where none existed without the Government’s influence, i.e., Police State.

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