13 F.4th 1
1st Cir.2021Background
- Undercover HSI agent created an adult Grindr profile (“Dave”) and, after Pérez contacted it, the agent offered sex with an 11‑year‑old “boyfriend.”
- Messages and later text exchanges (reproduced at trial) show Pérez responding enthusiastically, asking for pictures, arranging to meet, and arriving at the agreed location where he was arrested.
- Pérez was indicted for attempted enticement of a minor under 18 U.S.C. § 2422(b); the government relied principally on the message transcripts and Agent Seig’s testimony.
- Pérez requested an entrapment jury instruction (filed ex parte and renewed at a charging conference); the district court denied the instruction and Pérez did not renew an on‑the‑record objection after the charge.
- A jury convicted Pérez; he was sentenced to 151 months. On appeal, the First Circuit affirmed sufficiency of the evidence but vacated the conviction and remanded for a new trial because the court plainly erred in refusing the entrapment instruction and the error undermined trial fairness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted enticement under § 2422(b) | Messages + use of interstate facility + substantial step (travel/meeting) and intent to entice a minor via the intermediary support conviction | Pérez argued no intent to persuade a minor (agent posed a willing minor) and at most sought a meeting with an adult intermediary | Affirmed: viewing evidence in government’s favor, a rational jury could find intent and a substantial step; conviction supported |
| Entitlement to entrapment jury instruction (burden of production) | Government maintained Pérez was predisposed (e.g., statements like “the younger the better”) and entrapment not raised sufficiently | Pérez argued gov’t originated criminal design, bundled licit/illicit sex, downplayed harm, and record permits inference of lack of predisposition | Reversed: district court erred in denying instruction; when evidence is construed for defendant, entrapment was plausibly raised and should have gone to the jury; plain error warranted new trial |
| Preservation / standard of review for instructional objection | Court and government noted Pérez failed to renew objection after charge, so claim was forfeited and reviewed for plain error | Pérez argued pretrial request and charging‑conference renewal preserved the issue | Court applied plain‑error review (per First Circuit rule) but found all plain‑error prongs met and reversed |
| Adequacy of voir dire regarding anti‑gay bias | One general question was sufficient | Pérez argued voir dire should probe stereotypical or implicit anti‑gay bias given facts and defendant’s sexual orientation | Advisory holding: court should conduct more probing voir dire on anti‑gay bias on remand to ensure impartial jury |
Key Cases Cited
- Hinkel v. United States, 837 F.3d 111 (1st Cir. 2016) (entrapment instruction appropriate where government bundled licit and illicit sex and downplayed harm)
- Gamache v. United States, 156 F.3d 1 (1st Cir. 1998) (defendant met production burden for entrapment where government solicited sex with minors and normalized abuse)
- Jacobson v. United States, 503 U.S. 540 (1992) (entrapment doctrine; predisposition must precede government contact)
- Berk v. United States, 652 F.3d 132 (1st Cir. 2011) (elements of § 2422(b); intermediaries can suffice for communication with a minor)
- Gendron v. United States, 18 F.3d 955 (1st Cir. 1994) (inducement requires opportunity plus additional government pressure or exploitation)
- Dwinells v. United States, 508 F.3d 63 (1st Cir. 2007) (intent element under § 2422 and role of intermediary in achieving minor’s assent)