985 F.3d 591
8th Cir.2021Background
- FBI posted an undercover escort ad on SipSap.com under the persona “Kitty.”
- Tobar responded to the ad, called/texted the listed number, negotiated sex for $150, and arranged to meet that evening.
- The undercover agent texted that “I’m 15” early in the exchange; Tobar continued to request nude photos and to set up the meeting.
- Tobar arrived at the meeting with cash (~$2,000), alcohol requested by “Kitty,” and the phone used for texts; he was arrested and repeatedly apologized, admitting he knew Kitty was 15.
- At trial a jury convicted Tobar under 18 U.S.C. § 2422(b); the district court refused to give an entrapment instruction. Tobar appealed the refusal; the Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence warranted an entrapment instruction | Tobar: facts show government inducement to entice a minor, so instruction required | Government: evidence shows Tobar initiated contact and enthusiastically pursued sex despite learning age | Court: No—insufficient evidence of government inducement; instruction properly refused |
| Whether, assuming inducement, Tobar lacked predisposition | Tobar: claimed ambiguity and reliance on site screening for adults; argued lack of predisposition | Government: Tobar promptly requested nudes and meeting after learning age, showing predisposition | Court: Even if inducement shown, evidence established predisposition; immediate enthusiastic response indicates criminal disposition |
Key Cases Cited
- United States v. Herbst, 666 F.3d 504 (8th Cir. 2012) (entrapment requires inducement and lack of predisposition)
- United States v. Young, 613 F.3d 735 (8th Cir. 2010) (inducement exists when government implants the criminal design)
- United States v. Eldeeb, 20 F.3d 841 (8th Cir. 1994) (defining inducement standard)
- United States v. Strubberg, 929 F.3d 969 (8th Cir. 2019) (refusal of entrapment instruction denies a legal defense; reviewed de novo)
- United States v. Myers, 575 F.3d 801 (8th Cir. 2009) (four-factor test for inducement and predisposition analysis)
- Sorrells v. United States, 287 U.S. 435 (U.S. 1932) (government providing opportunity does not defeat prosecution)
- Mathews v. United States, 485 U.S. 58 (U.S. 1988) (predisposition contrasts unwary innocent vs. unwary criminal)