72 F.4th 262
7th Cir.2023Background
- FBI ran an undercover operation on Grindr; an agent created a profile (first “Clay,” then “Corey”) and represented the purported minor as 15 years old.
- Leal exchanged messages with the undercover account, initiated sexual talk, selected the sexual act (oral sex), asked for location, and arranged to meet despite being told the other was 15.
- Surveillance stopped Leal driving into the alley behind the address the undercover provided; Leal admitted he intended to receive oral sex from someone he believed was under 18 and that he deleted Grindr when stopped.
- Indicted for attempted enticement of a minor under 18 U.S.C. § 2422(b); jury was charged with the pattern entrapment instruction and the pattern investigative‑techniques instruction.
- On appeal Leal argued (1) the combined jury instructions confused/undercut entrapment, and (2) the government failed to rebut his entrapment defense; the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Leal preserved challenge to giving both the entrapment and investigative‑techniques pattern instructions | Government: defense counsel affirmatively approved the investigative‑techniques instruction at charging conference, so objection waived | Leal: giving both instructions together can undercut entrapment instruction and should have been reworded; neither court nor counsel considered that risk | Waived. Leal affirmatively approved the instruction during an in‑depth charging conference, so appellate review is foreclosed. |
| Whether government presented sufficient evidence to disprove entrapment (i.e., lack of inducement or predisposition) | Government: evidence shows Leal repeatedly initiated and persisted in planning sexual contact with a minor, asked for the act and location, and confessed—so no inducement; jury could infer no entrapment | Leal: undercover agent misrepresented age and repeatedly reassured him, which constituted inducement | Affirmed. Viewing evidence in government’s favor, a reasonable jury could conclude Leal was not induced and therefore not entrapped. |
Key Cases Cited
- United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014) (government must disprove entrapment by proving predisposition or lack of inducement)
- United States v. Mercado, 53 F.4th 1071 (7th Cir. 2022) (solicitation alone is insufficient—government must not engage in additional conduct creating risk of inducing an otherwise unwilling defendant)
- United States v. York, 48 F.4th 494 (7th Cir. 2022) (similar holding that defendant’s repeated initiation after learning of minor’s age permits rejection of entrapment)
- United States v. Natale, 719 F.3d 719 (7th Cir. 2013) (discussion of waiver vs plain‑error when defendants fail to object to jury instructions)
- United States v. LeBeau, 949 F.3d 334 (7th Cir. 2020) (affirmative approval of instructions constitutes waiver)
- United States v. Friedman, 971 F.3d 700 (7th Cir. 2020) (waiver through pursuing changes to some instructions while approving others)
- United States v. Ajayi, 808 F.3d 1113 (7th Cir. 2015) (court may examine whether a routine “no objection” preserved plain‑error review)
- United States v. Jackson, 5 F.4th 676 (7th Cir. 2021) (standard of review for sufficiency of evidence—view evidence in light most favorable to government)
- United States v. Faulkner, 885 F.3d 488 (7th Cir. 2018) (same sufficiency standard)
- United States v. Garcia, 37 F.4th 1294 (7th Cir. 2022) (examples of government conduct that can constitute inducement: repeated persuasion, fraudulent representations, promises of reward, sympathy/relationship appeals)