*1 United States Court of Appeals For the First Circuit
No. 19-1538
UNITED STATES OF AMERICA, Appellee,
v. RAFAEL PÉREZ-RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S. District Judge] Before
Kayatta, Lipez, and Barron, Circuit Judges.
Linda A. Backiel for appellant.
Julia Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá- Almonte, Assistant United States Attorney, were on brief, for appellee.
September 2, 2021
*2 LIPEZ , Circuit Judge . Rafael Pérez-Rodríguez was convicted by a jury of attempted enticement of a minor for unlawful sexual activity in violation of 18 U.S.C. § 2422(b). He was apprehended through a sting operation in which a government agent created a profile on an adults-only dating application posing as a gay adult man, and, after being contacted by Pérez, then offered to arrange a sexual encounter with his minor "boyfriend." Pérez appeals on several grounds, including insufficiency of the evidence and the denial of a jury instruction on the entrapment defense. While we find Pérez's challenge to the sufficiency of the evidence meritless, we conclude that the district court committed plain error in failing to give the entrapment instruction. We therefore vacate the conviction and remand for a new trial.
I. In 2015, Ryan Seig, a special agent with the child exploitation unit of Homeland Security Investigations ("HSI"), conducted a sting operation using the geosocial networking application Grindr. Agent Seig testified that the purpose of the application is "to talk and usually meet with someone else who shares your interests." On cross-examination, he added "it's social networking among homosexuals." Grindr describes itself as "the largest social networking app for gay, bi, trans, and queer people." About, Grindr, https://www.grindr.com/about/ (last *3 visited August 25, 2021). Grindr allows users to create profiles and to exchange messages with other users with profiles in their geographic area. Per Agent Seig's testimony, "[a] profile is a small blurb about what you are looking for, possibly what you look like, and sort of a general description of who you are and what you want." Grindr requires users to be eighteen years of age or older and does not allow individuals to use the platform to seek sexual encounters with minors.
Agent Seig created a Grindr profile under the name "Dave W." He wrote in his profile, "Looking for young fun or to share my young fun." He testified that he chose this text as a "veiled" reference to a sexual encounter with a minor, explaining that "someone who was familiar with the way pedophiles communicate on the internet could read this and know what it meant." The profile also described "Dave W." as "Muscular, White, Single."
On December 30, 2015, the Dave undercover profile received a message from a profile with the name "Mirando," a profile created by Pérez. Dave and "Mirando" exchanged messages on Grindr, and then moved to text messaging. The precise language of the messages is crucial to this case. [1] Thus, we reproduce key parts of the exchange in full. The conversation began as follows:
Pérez: Hello what are you doing?
Dave: Hey what's up
Pérez: Let's see you
Dave: Cool, do you like really young guys?
Pérez: Yes
Age?
I started at 8 Dave: Me? 35, but my boyfriend is young Pérez: Hahhaha Okk
How old is he?
What does your boyfriend like? Dave: He likes everything :)
He is very young, what age do you like? Pérez: The younger the better
I don't discriminate
I started at 8 hehehhe
So you tell me
What does he like to do?
We are close, we can come up with some fun From there up I do it all
Dave: Do you understand English? I speak only a little Spanish
My boyfriend is 11 years old. Do you want to play with him?
Pérez: Mmmm yessss
Where is he?
I speak little only a little English?
Share pics??
You tell me when and where???
Do you prefer to call?
Yes, I want to play Dave: We live in[] San Juan.
We're free next week. *5 Pérez: Ok
Have whatsapp?
Send me pics?
Can you now? Dave: Yes I'm busy with a party
Pérez: Ok, but you are close
Can you get away?
Can you* Dave: Last night, no haha :)
Do you want anal with him or oral? Pérez: Everything
I want the 3 of us to play
You for a while and me for a while. You like? Dave: Me too
Yes Pérez: Send me something to see you playing with him I like taboo
Dave: Me too :)
Pérez: Have a pic?
Are you with him at the party Dave: I don't want to send a pic because I won't know who you are until we meet
Yes, he is here
You can take pics if this happens. Just no faces I don't have whatsapp
But I can text Pérez: Text is better Pérez then sent two photos of himself to "Dave," and Dave provided Pérez with a telephone number.
The next day, December 31, Pérez sent Dave a text message to continue the conversation. He again expressed sexual interest in "Dave's" minor "boyfriend." Dave messaged, "we're going to *6 have a lot of fun, friend. :) . . . Him you and I[.]" Pérez requested pictures of "Dave." Pérez asked Dave questions about his relationship with the minor. ("How did you get him?" and "How long have you had him?").
On January 1, Pérez messaged Dave and said, "Happy New Year." He again said, "I want your boyfriend." Pérez and Dave discussed their availability for a meeting that week. They exchanged messages about what Pérez wants to do during the sexual encounter. Pérez asked several questions about how Dave met the minor, what the minor's parents think, and whether "Dave's" family knows about the minor. "Dave's" answers included "He's my friend" and "I am a 'good influence.'"
On January 2, Dave initiated the conversation. He writes, "Just saying hi. Very busy with family! Happy new year ;)[.]" The following day, Dave and Pérez discussed meeting.
Pérez: Let's see each other tomorrow to get to know you Dave: Ok, what time can you do it?
Pérez: Write me when you wake up
I get up early
Where should we meet? Dave: Are we using your house or mine for the threesome? Pérez: Yes. I live alone. But if it's at home, then it should be in the afternoon
But I want to see you before to get to know you and see what you want to do so that I'm comfortable
Dave: I understand. Me too.
Pérez: Ok
Dave: Where is a good place for us all to meet? Pérez: Where should we meet
Dave: We can meet and then go to your house for sex with all of us?
I can meet anywhere. It doesn't matter. We'll talk in the morning when you know more concerning your schedule
Pérez: Yes
Depends on what we talk about and we'll go I am free. Write to me tomorrow.
Pérez then requested a picture of Dave again. He asked Dave several more questions about his relationship with the minor. Dave said that the minor is "excited, happy" about the planned sexual encounter. They agreed to meet at Guaynabo Plaza. Pérez stated "first I see you" and asked "Can you come alone?" Dave replied, "I can leave him at my place and you can follow me there, ok?" Pérez responded, "Yes."
The following morning, Monday, January 4, Dave started the conversation again, initiating this exchange:
Dave: Can you meet at 3?
Pérez: Ok
Dave: Cool
Pérez: Ok
Dave: I spoke with him and he's excited :) He's worrie[d] about what clothes to bring LOL
What parking do you want to meet in?
Are you busy? *8 Pérez: Hahahhahha
Go to Guaynabo Plaza and I'll tell you where we'll meet
Remember that I want to talk to you first. I need to feel safe.
Dave: Yes, me too, it's a good idea.
I am also scared. Pérez: That's why I want to see you by yourself. I would like to know you first.
Dave: Yes, he will be at my house
Pérez: Ok
Dave: Waiting with the XBOX and beers LOL Pérez: What are you like, physically?
Mmmmm
I like beer
He doesn't get in trouble for drinking? Dave: Like in my profile.
5'9" or 5'10". Brown hair. Pérez: Gym body?
Dave: Yes, I lift weights 4-5 days a week I am not fat
Pérez: And what's he like?
Dave: Skinny, like a young guy. He is Boricua, with short hair.
Pérez: Ok
Dave: He likes soccer jerseys?
He's very intelligent and friendly Pérez: Let's see one another now to talk and be horny about what we're going to do.
The two men eventually agreed to meet at the Martinez Nadal train station at 4 p.m.
At the appointed time, Agent Seig drove to the station and parked his vehicle in the parking lot. Seig had informed other members of his unit about the meeting, and several additional HSI agents were also waiting in the parking lot. Pérez drove into the parking lot, pulled up alongside Agent Seig's vehicle, and got out of his car. HSI agents immediately arrested him.
On January 27, 2016, a grand jury returned an indictment charging Pérez with one count of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). Prior to commencement of the jury trial, the parties submitted proposed jury instructions. Pérez filed a separate ex parte request for an entrapment jury instruction.
A two-day jury trial was held beginning on May 15, 2017. The government's case primarily consisted of Agent Seig's testimony and the transcripts of the Grindr and text messages. [2] Pérez did not present any witnesses. [3] At the close of the evidence, *10 Pérez moved for acquittal under Rule 29. The district court denied the motion. The parties participated in a charging conference, which was not recorded. Nevertheless, the record indicates that Pérez renewed his request for an entrapment jury instruction at that conference because the district court denied the entrapment instruction in a docket entry, stating, "The ruling is based on the arguments presented by the government and defendant's response during the charging conference in connection with predisposition. In the end, the evidence presented at trial did not justify an entrapment instruction." Before instructing the jury, the court asked the parties if there were "any objections to the instructions." Pérez did not raise any objections at that time. After charging the jury, the district court did not invite objections from the parties. Pérez did not raise any objection. The jury deliberated for less than one hour and returned a guilty verdict. On May 14, 2019, Pérez was sentenced to 151 months of incarceration.
Pérez timely filed this appeal. In addition to challenging the sufficiency of the evidence, he asserts that the district court erred in rejecting his request for an entrapment instruction. [4]
II.
We review de novo the district court's denial of Pérez's
properly preserved claim that the evidence presented at trial was
insufficient to support the jury's verdict. See United States v.
Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019). In evaluating a
sufficiency of the evidence claim, "we examine the evidence, both
direct and circumstantial, in the light most favorable to the
prosecution and decide whether that evidence, including all
plausible inferences drawn therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged count or crime." United States v. Velázquez-
Aponte,
A. The Elements of the Offense
Pérez was found guilty of violating 18 U.S.C. § 2422(b), which provides:
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 District of Puerto Rico be conducted in English), and the Court Reporter Act, see 28 U.S.C. § 753(b) (requiring federal court proceedings to be recorded verbatim), (3) improper opinion testimony, and (4) improper exclusion of a character witness. Except for some observations on the voir dire process, we do not address the other issues raised given our conclusion that Pérez's conviction must be vacated on the basis of the court's failure to give an entrapment instruction.
years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.
To support a conviction under the attempt portion of the statute,
the government must show that the defendant attempted to "(1) use
a facility of interstate commerce (2) to knowingly persuade,
induce, entice, or coerce (3) an individual under the age of 18
(4) to engage in illegal sexual activity."
[5]
United States v. Berk,
652 F.3d 132, 138 (1st Cir. 2011) (quoting United States v.
Gravenhorst,
To prove an attempt, the government must establish both a specific intent to commit the substantive offense and a substantial step toward its commission. Id. at 140. Hence, for conviction under § 2422, the specific intent required is the intent to persuade, induce, entice, or coerce a minor into engaging in illegal sexual activity. We have interpreted this requirement as broadly requiring an intent "to achieve a mental state -- a minor's assent -- regardless of the accused's intentions vis-à-vis the actual consummation of sexual activities with the minor." United States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (emphasis omitted).
*13
A substantial step toward commission of an offense is
"less than what is necessary to complete the substantive crime,
but more than 'mere preparation.'" Berk,
B. The Sufficiency of the Evidence Against Pérez
On the first element, intent, Pérez argues that the government failed to provide enough evidence to allow a jury to conclude that he intended to persuade, induce, entice, or coerce a minor. He asserts: "There was no reason to do that [i.e., persuade, induce, entice, or coerce] here because the agent offered [a minor] he presented as already ready, willing, and experienced, 'lik[ing] everything.'" In his view, the evidence, at most, could allow the jury to conclude that Pérez communicated with an adult with the intention of "bringing about a meeting at which prohibited conduct was supposed to, or likely to occur."
Pérez's focus on the fictitious minor's supposed sexual
experience and willing participation is seriously misplaced. A
child who has previously been sexually abused or is otherwise
depicted as "experienced" can still be a victim of persuasion,
inducement, enticement, or coercion. See United States v. Hinkel,
167 (1st Cir. 2014) (describing the process of a sexual predator
"grooming" a child to form an emotional connection which would
lead the child to be persuaded to engage in sexual activity);
United States v. Brand,
It was reasonable for the jury to believe that the
fictitious eleven-year-old boy Dave "offered" to Pérez would not
participate in the planned sexual encounter absent persuasion,
inducement, coercion, or enticement -- at a minimum, "implicit
coaxing or encouragement." See United States v. Montijo-Maysonet,
974 F.3d 34, 42 (1st Cir. 2020) ("[T]he four verbs Congress
used -- including 'entice' and 'induce' -- plainly reach implicit
coaxing or encouragement designed to 'achieve . . . the minor's
assent' to unlawful sex[.]" (second omission in original) (quoting
Dwinells,
On the second element, substantial step, Pérez
emphasizes that he never communicated directly with a minor. Such
communication is not required to establish a substantial step
towards commission of a § 2422(b) offense. In Berk, we recognized
that "a defendant can be convicted [of a § 2422(b) offense] even
if the relevant communications are with an intermediary." 652
F.3d at 140. Berk involved communications between the defendant
and parents of minor children, but we did not state that only
parents could serve as intermediaries in the commission of a
§ 2422(b) offense. See id. Indeed, the rationale for relying on
a sexual predator's use of intermediaries extends to any adult
with sufficient influence or control over a minor. As explained
by the Third Circuit, in an opinion cited in Berk, § 2422(b) is
"part of an overall policy to aggressively combat computer-related
sex crimes against children[] [and] [i]t would be wholly
inconsistent with the purpose and policy of the statute to allow
*17
sexual predators to use adult intermediaries to shield themselves
from prosecution." United States v. Nestor,
The "broad net" plainly must cover a defendant who attempted to use any intermediary adult perceived to have sufficient sway to "lead a child to participate in sexual activity." See United States v. Douglas, 626 F.3d 161, 164 (2d Cir. 2010). The defendant's understanding of the nature and degree of the adult's control over the minor is a question of fact for the jury. Here, the jury could reasonably infer that an adult man whose "boyfriend" is a minor, and who confidently invites another man to have sex with the child, would have been viewed by the defendant as someone with the power to elicit the minor's assent to illegal sexual activity. [6]
Pérez similarly argues a lack of evidence of a substantial step because the evidence showed he arrived at the *18 parking lot to meet Dave, not the minor. We agree with the district court that "the act of traveling to meet an intermediary . . . has been held sufficient to establish a 'substantial step.'" United States v. Pérez-Rodríguez, No. 16-041 2016, WL 7442650, at *2 (D.P.R. Dec. 27, 2016) (citing Berk, 652 F.3d at 140). Drawing all inferences in favor of the government, a rational jury could find that Pérez's communications with Dave and his subsequent arrival at the meeting he arranged with Dave constituted a substantial step to persuade, induce, entice, or coerce a minor. Thus, there was sufficient evidence to convict and the motion for acquittal was properly denied.
III. The district court declined to instruct the jury as to the elements of Pérez's primary defense, entrapment, because, in its view, the record did not contain sufficient evidence to warrant the instruction. Pérez argues that this omission denied him a fair trial.
A. Standard of Review
Preserved objections to the denial of a requested jury
instruction are subject to plenary review. United States v. Joost,
(1st Cir. 2001). It has been the longstanding rule of this circuit to treat a challenge to jury instructions as forfeited if the defendant fails to object to the instructions after the judge has charged the jury, regardless of whether he previously brought the matter to the judge's attention. United States v. Wilkinson, 926 F.2d 22, 26 (1st Cir. 1991) ("As we have repeatedly held, . . . [a] party may not claim error in the judge's charge to the jury unless that party 'objects' after the judge gives the charge but before the 'jury retires . . . .'" (quoting Fed. R. Crim. P. 30)), overruled on other grounds by Bailey v. United States, 516 U.S. 137, 149 (1995). Though Pérez requested an entrapment instruction before the trial and argued for it at a charging conference, he did not lodge a post-charge objection to the denial of the instruction. [7] Thus, Pérez's claim is subject to plain error review.
To meet the heavy burden of establishing plain error, an
appellant must show "(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
*20
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The first
prong, "error," consists of "[d]eviation from a legal rule."
United States v. Olano,
303 (1st Cir. 2017). Our analysis under the fourth prong is guided by our fundamental concern with "the public legitimacy of our justice system[,] [which] relies on procedures that are 'neutral, accurate, consistent, trustworthy, and fair.'" Rosales- Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (quoting Josh Bowers & Paul H. Robinson, Perceptions of Fairness and *21 Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 Wake Forest L. Rev. 211, 215 – 16 (2012)).
The plain error standard is a difficult burden for any
appellant to meet. See United States v. Gelin,
B. The Entrapment Defense
Entrapment provides a defense if law enforcement
officers "originate a criminal design, implant in an innocent
person's mind the disposition to commit a criminal act, and then
induce commission of the crime so that the Government may
prosecute." Jacobson v. United States,
1. Improper Inducement
Improper inducement, also referred to as "government
overreaching," occurs when law enforcement agents engage in
conduct "of the type that would cause a person not otherwise
predisposed to commit a crime to do so." Hinkel,
2. Lack of Predisposition
The second element of the entrapment defense turns on whether the "defendant was disposed to commit the criminal act prior to first being approached by Government agents." Jacobson, 503 U.S. at 549. Our decision in Gendron sets forth our understanding of this element as follows:
The right way to ask the question, it seems to us, is to abstract from -- to assume away -- the present circumstances insofar as they reveal government overreaching. That is to say, we should ask how the defendant likely would have reacted to an ordinary opportunity to commit the crime. By using the word "ordinary," we mean an opportunity that lacked those special features of the government's conduct that made of it an "inducement," or an "overreaching." Was the defendant "predisposed" to respond affirmatively to a proper, not to an improper, lure?
Gendron,
(1st Cir. 1994); see also United States v. Gamache,
We have advised trial courts that the following factors may be useful in evaluating the evidence of predisposition or lack thereof:
(1) the character or reputation of the defendant; (2) whether the initial suggestion of criminal activity was made by the Government; (3) whether the defendant was engaged in the criminal activity for profit; (4) whether the defendant showed reluctance to commit the offense, which was overcome by the governmental persuasion; and (5) the nature of the inducement or persuasion offered by the Government.
Gamache,
3. The Defendant's Burden of Production
A defendant is entitled to a jury instruction on
entrapment if he meets a modest burden of production on the two
prongs of the defense. United States v. Rodriguez,
814 (1st Cir. 1988). This rule is in keeping with the "general
proposition [that] a defendant is entitled to an instruction as to
any recognized defense for which there exists evidence sufficient
for a reasonable jury to find in his favor." Mathews v. United
States,
In analyzing whether the defendant has met his burden,
the court must construe the evidence in the light most favorable
to the defendant. Rodriguez, 858 F.2d at 813. An entrapment
instruction is required if the evidence, viewed in this charitable
*26
fashion, "furnishes an arguable basis for application of the
proposed rule of law." Id. at 814 (quoting United States v. Coady,
have previously emphasized, "[t]his is not a very high standard to meet." Id.
A defendant does not need to introduce his own evidence
to meet this burden. Rodriguez,
Once the defendant meets his burden of production, entrapment becomes a question of fact for the jury. Id. At that stage, the government bears the burden of proving beyond a reasonable doubt either that there was no improper inducement or that the defendant was predisposed to commit the offense. Id. If "a rational jury could decide either way, its verdict will not be disturbed." Id.
IV.
Consistent with our earlier explanation of the plain
error standard, Pérez is entitled to relief if he is able to
demonstrate that: (1) the district court erred in failing to give
an entrapment instruction; (2) his entitlement to that instruction
was clear or obvious; (3) the omission affected his substantial
rights; and (4) it undermined the fundamental fairness of the
trial. See Duarte,
A. Error
The district court denied Pérez's requested entrapment instruction for failure to meet his burden of production on the lack of predisposition prong, without addressing whether Pérez had met his burden of production on the improper inducement prong. Because the defendant is required to meet the burden of production on both prongs, a court may deny an entrapment instruction based *28 on a failure to show evidence on one prong or the other, without discussing both. See, e.g., United States v. Rivera-Ruperto, 846 F.3d 417, 431 (1st Cir. 2017); United States v. Sánchez-Berríos, 424 F.3d 65, 77 (1st Cir. 2005). Because we disagree with the district court's assessment of the evidence on predisposition, we must consider both prongs. If the defendant failed to meet his burden of production on the improper inducement prong, an error by the judge in the assessment of the predisposition prong would be harmless.
We also repeat that improper inducement and
predisposition are analytically linked in that improper
inducement, and the defendant's responses to it, are part of the
evidence courts should consider in deciding whether the defendant
met his burden of production on the lack of predisposition prong.
Gamache,
1. Improper Inducement
Agent Seig created a Grindr profile appearing to belong to an adult named "Dave W." The profile described Dave as "[m]uscular, [w]hite, [s]ingle." Pérez sent a message to that profile, presumably believing he was speaking with that adult man. Dave quickly turned the conversation towards sexual activity with a minor by offering to arrange a sexual encounter with his eleven- year-old "boyfriend." Dave said that both he and the minor would be part of the encounter, stating it would be "him you and I" and describing the encounter as a "threesome." This type of "bundling of licit and illicit sex into a package deal" can constitute a "plus factor" for purposes of establishing improper inducement. Hinkel, 837 F.3d at 118; see also Gendron, 18 F.3d at 961 (describing "the government's taking advantage of an alternative, non-criminal type of motive" as a "typical[]" example of an inducement plus factor).
Agent Seig, writing as Dave, represented from the start
that the eleven-year-old minor was his "boyfriend" -- a term which
suggests the legally impossible notion that the minor was a
consenting participant in a sexual and romantic relationship with
Dave. Agent Seig repeatedly stated that this imagined encounter
would be a positive experience for the minor. Such repeated
suggestions "downplay[ing] the harm" caused by child sexual abuse,
or otherwise justifying it, can constitute a "plus factor" which
a jury may rely on to find improper inducement. See Hinkel, 837
F.3d at 118 (stating that the defendant presented evidence of
"clever and sophisticated inducement" where the law enforcement
agent "on numerous occasions, downplayed the harm that could be
expected to flow from the commission of the crime by describing
how 'amazing' the encounter would be, how 'excited' 'Samantha'
was, and how 'Lisa' 'appreciate[d]' how 'honest and caring' Hinkel
had been in his messages"); Gamache,
Hence, the record contained evidence that would allow a jury to find two significant "plus" factors in Agent Seig's communications with Pérez: first, Seig's linking the opportunity for adult sexual activity, a lawful objective of Grindr users, with the unlawful sexual activity involving a minor -- establishing a kind of prerequisite for the adult activity; second, Seig's repeated suggestions that the illegal conduct was not harmful, but actually beneficial, to the minor. Thus, a reasonable jury could have found improper inducement -- a necessary precondition for a defendant to meet his burden of production on lack of predisposition.
2. Lack of Predisposition
Pérez met his burden of production on the lack of
predisposition prong if the record would permit a reasonable
inference by the jurors that, before his interaction with Agent
Seig, Pérez was not predisposed to commit the crime of enticing a
minor to commit unlawful sexual activity. See Gendron, 18 F.3d at
962. The five factors identified in Gamache guide our analysis.
See
As to the first factor, the character or reputation of
the defendant, the evidence might include prior criminal
convictions for similar offenses or a history of sexual interest
*32
in minors. Tellingly, the record contains no such evidence. See id. at 12 ("[T]here was no evidence presented that Gamache had
engaged in similar activities independent of this sting operation.
The jury could have relied on this evidence to find a lack of
predisposition . . . ."); see also Hinkel,
There are two statements from Pérez early in the conversation with Dave that "I started at 8." As noted earlier, the exchange begins as follows:
Pérez: Hello what are you doing?
Dave: Hey what's up
Pérez: Let's see you
Dave: Cool, do you like really young guys?
Pérez: Yes
Age?
I started at 8 Dave: Me? 35, but my boyfriend is young Pérez: Hahhaha Okk
How old is he?
What does your boyfriend like? Dave: He likes everything :)
He is very young, what age do you like? Pérez: The younger the better
I don't discriminate
I started at 8 hehehhe
So you tell me
What does he like to do?
We are close, we can come up with some fun From there up I do it all
Dave: Do you understand English? I speak only a little Spanish
My boyfriend is 11 years old. Do you want to play with him?
Pérez: Mmmm yessss
Where is he?
I speak little only a little English?
Share pics??
You tell me when and where???
Do you prefer to call?
Yes, I want to play The dissent states that, "in context," the exchange plainly reflects a "stark pre-dispositional admission by Pérez." In fact, however, the dissent ignores the context of Pérez's statements that "I started at 8." Both statements are made before the notion of sex with a minor entered the conversation ("My boyfriend is 11 years old. Do you want to play with him?"). Until Dave talks about his eleven-year-old "boyfriend," the conversation, which took place on a dating app for adults, can be read as discussing sex with young adults. When Dave refers to himself as thirty-five, he could be saying that he is thirty-five *34 years old, or that he started having his sexual experiences at age thirty-five. Clearly, he (i.e., Agent Seig, posing as Dave) is not saying that his partners in his sexual experiences are thirty- five. It thus remains unclear, when Pérez reiterates that he "started at 8," whether he is referring to the beginning of his own sexual experiences or the age of boys with whom he has had sex.
The dissent similarly ignores the context when Pérez
says, "the younger the better." Here, too, he makes the statement
before Dave made any reference to his "boyfriend" being underage.
Thus, it is hardly clear that Pérez is admitting to having an
interest in children rather than meaning that he is interested in
younger adults. The latter interpretation is plausible,
particularly in light of Dave's reference to "really young guys,"
(the word "guys" tending to imply adults), and the fact that Pérez
made the comments on an adults-only dating app. As for Pérez's
apparent eagerness when he discovers that Dave's "boyfriend" is
only eleven, we have said in our case law that " eagerness alone
. . . is not sufficient to remove the predisposition question from
the jury's purview." Gamache,
Hence, the text is ambiguous enough that a jury, not a judge, needed to determine its meaning. See id. at 9 ("[T]he court's function is to examine the evidence on the record and to draw those inferences as can reasonably be drawn therefrom, *35 determining whether the proof, taken in the light most favorable to the defense can plausibly support the theory of the defense."). Thus, for the purpose of evaluating the evidence on the predisposition prong, the "I started at 8" statements do not provide evidence of a history of sexual interest in minors.
On the second factor, the initial suggestion of criminal activity, it is indisputable that the government first suggested the sexual abuse of a minor. In fact, as we have noted, Pérez encountered law enforcement on a forum intended to be used only by adults. [9] The jury could reasonably draw the inference from Pérez's use of Grindr that, before his conversation with "Dave," he was interested in sex with other adult men, not children. Indeed, the expert psychologist who testified at sentencing drew this same inference, stating: "A pedophile will not be using, my personal clinical opinion, I don't think they will use Grindr because he will be easily identified." Although Agent Seig testified that he designed his profile to contain "veiled" references which would be understood as suggesting sexual abuse of a minor "by someone who was versed in communicating in the realm of pedophiles," we must interpret the evidence in the manner most charitable to Pérez. *36 Here, there is no basis for concluding on this record that Pérez understood these veiled references.
The third factor -- whether the defendant engaged in the criminal activity for profit -- is not relevant here, but we note that monetary profit was not at issue.
As for the fourth factor, "whether the defendant showed reluctance to commit the offense," the transcripts show that Pérez insisted on meeting Dave without the minor's presence. Taken in the light most favorable to Pérez, as it must be at this stage, this insistence can be read as a sign of some reluctance to commit the crime. Pérez made clear that any subsequent meeting with the minor would depend on how the meeting with Dave went, and it is a reasonable inference from the messages that Pérez had not made up his mind about actually meeting the child. A jury could also conclude from Pérez's insistence on meeting with Dave alone, his repeated statements that he wanted to get to know Dave first, and his clear interest in Dave, that Pérez was hesitant about moving beyond the realm of fantasy with a minor and was motivated by a desire to "be horny" with an adult in whom he was sexually interested. Although a jury could also conclude that Pérez intended to proceed directly to a meeting with the minor after seeing Dave and ensuring he was not a law enforcement officer, that plausible inference is not sufficient to take the entrapment defense from the jury. See Gamache, 156 F.3d at 10 (explaining *37 that whether the government disputes the defendant's version of the facts is "irrelevant to the question of whether it raises an issue of entrapment to be put before the jury"); Rodriguez, 858 F.2d at 815 (explaining that it is sufficient that "[the defendant's] version, whether or not it strikes us as particularly credible, is neither thoroughly implausible nor constructed entirely of gauzy generalities").
The fifth factor, "the nature of the inducement or persuasion offered by the Government," brings us back to the improper inducement analysis. From the very beginning of the conversation, Pérez expressed his interest in "Dave," an adult man. Before either party said anything about a minor, Pérez said to Dave, "Let's see you," likely meaning that he wanted to see a picture of "Dave." Later in the conversation, Pérez asked Dave for pictures again and for a physical description of his body. A juror could reasonably infer that Pérez was primarily motivated by sexual interest in "Dave," not the minor. Pérez also asked Dave questions about how he "got" his "boyfriend." Drawing inferences in favor of Pérez, these questions suggest that he asked them because he had not ever thought about or tried to entice a minor into sex before, and would not do so without the encouragement of the government agent and repeated statements "downplaying the harm," Hinkel, 837 F.3d at 118, or, even more offensively, normalizing the sexual behavior with the minor.
To be sure, there are different inferences one could draw from the communications between Pérez and Dave. But, in determining whether the defendant has met his burden of production, we are required to draw all inferences in favor of the defendant. The evidence relevant to the factors listed in Gamache provides at least some evidence of lack of predisposition. Thus, the record met Pérez's modest burden of production, and the district court erred by denying the entrapment instruction.
B. Clear or Obvious Error
1. Relevant First Circuit Precedent
Prior to Pérez's trial in May 2017, our court had decided
two significant cases addressing the circumstances in which a
defendant is entitled to jury instructions on the entrapment
defense in the context of child sexual abuse sting operations:
Hinkel,
a. Hinkel
Hinkel was convicted of attempted enticement of a minor in violation of § 2422(b) -- the precise offense at issue here -- after email correspondence with a law enforcement agent posing as "Lisa," the thirty-eight-year-old mother of a fictitious fifteen- year-old girl, "Samantha." Hinkel, 837 F.3d at 116. Hinkel contacted "Lisa" based on a personal ad posted to an "online *39 message board . . . frequented by those seeking adult sex partners." Id. at 115. The ad stated, "mom with daughter looking for taboo relationship." Id. at 116. Hinkel responded with an email containing "graphic descriptions of sexual acts that he imagined engaging in with 'Lisa' and her daughter." Id. The government agent posing as "Lisa" promptly told Hinkel that her daughter was "15 but experienced," to which Hinkel responded, "Sounds very naughty! I am concerned about her age since legally she should be 16 or older." Id. The agent answered "she[']s not [16 or older] so i guess this conversation is over." Id. Hinkel immediately replied, "Nope..... It is not over! I want to talk more! I'm very intrigued by it all. Such taboo and naughty play!!!!" Id.
For the next month, Hinkel continued to correspond with Lisa in "lurid detail" about his desire to have sex with "Samantha," though he occasionally expressed "conflicting feelings." Id. at 116-17. Lisa reassured Hinkel, writing "i think you will love her...and i appreciate the way you describe our situation." Id. at 117. Hinkel also exchanged sexually graphic emails with Samantha directly. Id. Hinkel and Lisa made plans for Hinkel to visit and have sex with Samantha. Id. Lisa told him that the planned encounter would be "such an amazing experience for us to have together." Id. When Hinkel arrived at the appointed time and place, he was arrested and subsequently charged and *40 convicted of a § 2422(b) offense. Id. At his trial, the government introduced evidence of "five cartoons, which consist of detailed anime drawings of adults and minors engaged in sex acts" that law enforcement had found on Hinkel's computer. Id. at 122.
Hinkel's primary defense at his trial was entrapment, and -- unlike here -- the district court instructed the jury on the elements of that defense. Id. On appeal, Hinkel claimed the government's evidence was insufficient to overcome the entrapment defense. Id. We rejected that challenge because it was reasonable for the jury to find that entrapment had not occurred. Id. at 120. Of importance here, however, is our explicit consideration of whether Hinkel had satisfied his burden of production even though the district court had instructed the jury on entrapment. Id. at 118. Hence, although the posture of Hinkel was different, its discussion of the facts that clearly met the threshold for an entrapment instruction is directly applicable here.
b. Gamache
Following a postal service correspondence with a law
enforcement agent posing as a mother of three young children,
Gamache was convicted of travel with intent to engage in illicit
sexual conduct with a minor in violation of 18 U.S.C. § 2423(b),
and an attempt to use a minor to produce sexually explicit images
in violation of 18 U.S.C. § 2251(a). Gamache,
The agent, posing as "Frances," steered the correspondence toward sex with her three minor children, ages twelve, ten, and eight. Id. at 4. Frances wrote that she wanted to "introduc[e] an adult male to further [her] children's sexual education and experiences." Id. Gamache responded that he was "not shocked" and that he would be "honored" to be chosen as the adult man to have sex with Frances's children. Id. Over several months of continuing correspondence, Frances described sexual activities she wanted Gamache to engage in with her children, and Gamache replied in kind, sharing his own ideas and desires. Id. at 4-7. He also sent a letter to the children describing sexual activities he planned to engage in with them. Id. at 7. Throughout the correspondence, Frances referenced a "kind" uncle who "taught [her] about sex when [she] was very young, and wanting the same type of experience for [her] children." Id. at 4-5 (alterations in original). She told Gamache the children were "very excited about meeting" him, and they arranged for Gamache to meet "Frances" and her children at a motel. Id. at 5-7. When Gamache arrived at the motel, he was arrested. Id. at 7.
*42 Gamache requested an entrapment instruction at his trial, and the court rejected his request. Id. at 3. His objection was properly preserved and subject to plenary review. Id. at 9. We held that Gamache had met his burden of production on both prongs of the entrapment defense and that the court erred in failing to give the instruction. Id. at 12. We vacated the conviction and remanded for a new trial.
c. Common Principles in Hinkel and Gamache Our review of Hinkel and Gamache reveals that, at the time the district court rejected Pérez's request for an entrapment instruction, we had previously held that certain facts in combination -- present in both of those cases -- entitled a defendant to an entrapment instruction.
In both cases, the government originated the criminal
design and invited the defendants to participate by placing an
ambiguous advertisement in an adults-only forum; then, when the
defendants responded to the advertisements, the government offered
to arrange a sexual encounter involving a minor. Hinkel, 837 F.3d
at 116; Gamache,
Not surprisingly, given these similarities, we cited Gamache as apt precedent in stating that the defendant met his burden of production in Hinkel. The cases, of course, are not identical. Gamache involved a more prolonged period of correspondence and, arguably, more severe government manipulation. Despite those differences, however, when all inferences are drawn in favor of the defendant, the record in each case told, in essence, the same story: a defendant without any known prior sexual contact with minors moved from his initial, lawful inquiry about adult sex to what a jury could find was an attempt to commit an offense involving sexual exploitation of a minor, prompted by encouragement from the government that a reasonable juror could deem improper inducement.
2. Comparing Pérez's Case with Hinkel and Gamache
a. Initiation by the Government Agent
Like the law enforcement agents in Hinkel and Gamache,
Agent Seig purported to be an adult using a forum for adults
seeking adult sexual partners, and alluded to the possibility of
a relationship with a younger person without specifying the nature
of the relationship or the age of the young person. See Hinkel,
b. Government's Bundling of Licit and Illicit Sex
Agent Seig's sting operation relied on precisely the
same tactic we described in Hinkel and Gamache: the "bundling of
licit and illicit sex into a package deal." Hinkel, 837 F.3d at
118; see also Gamache
a plausible argument that "all of [Gamache's] correspondence about sex with minors was a ruse to have sex with 'Frances,' who was his target from the time that he answered the ad").
c. Government Agent's Statements Normalizing Sexual Abuse
Dave's comments repeatedly portraying sex with a minor
as normal or even beneficial resemble those made by the agents in
Hinkel and Gamache. See Hinkel,
d. Defendant's Reluctance to Commit the Offense As in Hinkel and Gamache, some of Pérez's actions could be interpreted as reluctance to commit the offense. He repeatedly insisted on meeting with Dave alone, without the minor's presence. That demand could be interpreted as an indication that he was reluctant to go through with meeting the minor, despite his many statements of enthusiasm about doing so.
To be sure, Pérez's plausible expression of reluctance
differed from the more explicit statements in Hinkel and Gamache.
Still, there was no outright rejection of the criminal conduct in
either of those cases. Hinkel briefly indicated hesitation when
"Lisa" told him that her daughter was fifteen, but clearly overcame
his reluctance just moments later, stating in response to an
obvious exit opportunity, "Nope..... It is not over! I want to
*47
talk more! I'm very intrigued by it all. Such taboo and naughty
play!!!!"
[10]
See Hinkel,
e. Defendant's Eagerness to Commit the Offense Aside from his insistence on meeting Dave separately prior to meeting the minor, Pérez's responses to Dave's suggestions of sexual activity with an eleven-year-old boy were decidedly not reluctant. His immediate response to Dave's offer of sex with his "boyfriend" was "yes," and he made explicit statements about the sex acts he wanted to engage in with the boy. [11] Gamache and Hinkel *48 expressed similar reactions to law enforcement agents' criminal suggestions. See Hinkel, 837 F.3d at 118 (describing the defendant's response as "eager[]"); Gamache, 156 F.3d at 11 (describing the defendant's response as "enthusiastic"). Both Hinkel and Gamache gave graphic descriptions of the sex acts they wanted to engage in with minors. See Hinkel, 837 F.3d at 116 (stating that "Hinkel corresponded frequently and in lurid detail with 'Lisa' and her fictitious daughter 'Samantha'" and that he "describ[ed] his own sexual desires in detail"); Gamache, 156 F.3d at 6 (describing a letter from Gamache to Frances that "explain[ed], at length and in detail, how he will carry about the sexual 'education' of 'Frances'' 'children'").
Our holdings in Hinkel and Gamache make clear that a
defendant can meet his burden of production on lack of
predisposition even if he responded eagerly or enthusiastically to
the proposed criminal conduct. As we have noted, in Gamache we
explained, "[W]hile 'ready commission of the criminal act can
to meet with Dave just five days after the first message. This
time frame may be another display of eagerness, certainly worthy
of the jury's consideration, but it did not warrant withholding
the entrapment instruction from the jury when other evidence in
the record supported a finding of a lack of predisposition. The
dissent also overlooks the fact that Pérez was arrested, not at a
planned meeting with the minor, but rather, at a meeting with Dave.
Read in the light most favorable to Pérez, he was prepared to meet
with the adult intermediary alone, but had not clearly agreed to
meet with the minor. By contrast, Hinkel and Gamache were arrested
at planned meetings with minors. See Hinkel, 837 F.3d at 116;
Gamache,
*49 itself adequately evince an individual's predisposition' and thus provide sufficient evidence to support a jury's finding that the defendant was predisposed to commit the offense, eagerness alone, when coupled with the 'extra elements' present in this sting operation, is not sufficient to remove the predisposition question from the jury's purview." 156 F.3d at 12 (citation omitted) (quoting Gifford, 17 F.3d at 469); see also id. at 11-12 ("[W]illingness to commit the crime, although clearly relevant to the jury's inquiry, is not sufficient by itself to mandate a finding that he was predisposed."); Rodriguez, 858 F.2d at 816 ("Although a jury might well find that Rodriguez's wiliness, and the level of experience and enthusiasm which he subsequently exhibited, were inconsistent with the claim of initial unreadiness, such a finding would not be inevitable.").
f. Prior Sexual Interest in Children
As Pérez notes, the trial record contained "absolutely
no evidence that, aside from this virtual conversation, Mr. Pérez
had engaged, tried to engage, or would have considered engaging in
sex with a minor."
[12]
In Gamache, we emphasized the importance of
the absence of evidence of prior similar conduct in meeting the
defendant's burden of production on lack of predisposition. See
*50
Gamache,
Of course, to address the burden of production on the
predisposition issue, a defendant could introduce some evidence of
positive relationships with children, though Gamache makes clear
that the defendant need not introduce such evidence to meet that
burden. See id. Indeed, Hinkel offered evidence that he "had
raised two adult children and had not been accused of having an
inappropriate relationship with either of them." Hinkel, 837 F.3d
at 118. However, in Hinkel, there was contrary evidence that
Hinkel had sexual interest in children before the contact with the
government, in the form of cartoon images of adult sexual conduct
with children recovered from his computer. Id. at 122. Hinkel
challenged the admission of that evidence on appeal. Id. In
rejecting that claim, we recognized that the images were "probative
of Hinkel's predisposition" and may tend to show "sexual
inclination towards children." Id. (quoting United States v.
Chambers,
3. Conclusion
As we have described, this case is strikingly similar to Hinkel and Gamache. Agent Seig used the same tactics we saw in those cases -- placing an ambiguous lure on an adults-only forum, inviting the defendant who responded to the lure to engage in a "bundled" sexual encounter with an adult and a child, and repeatedly insisting that this sexual abuse was beneficial to the child. Pérez responded similarly to Hinkel and Gamache -- enthusiastic interest coupled with a weak expression of reluctance. And as in Gamache, the record at Pérez's trial contained no evidence of any sexual interest in children prior to the government's intervention.
In Hinkel, we stated that the facts "clearly" met the
defendant's "'modest' burden of making a prima facie showing that
there is some evidence both elements [of the entrapment defense]
are satisfied." Hinkel, 837 F.3d at 117; see also id. at 118
(stating that the evidence at Hinkel's trial supported "a credible
entrapment case"). In Gamache, we concluded that "appellant met
the dual burdens required for an instruction on entrapment, because
the evidence raises a reasonable doubt that the Government
improperly induced a citizen to commit crimes that he was not
predisposed to commit, yet crimes for which he was charged and
*52
convicted." Gamache,
Tellingly, the government's brief on appeal does not even mention Hinkel or Gamache, much less attempt to distinguish those cases from the circumstances present here. The government's primary argument is that Pérez cannot meet his burden on lack of predisposition because he "jumped at the opportunity to 'play' with the 11-year-old boyfriend." That position is obviously foreclosed by our case law, and, if it influenced the district court's decision to deny the entrapment instruction, it should not have.
The dissent claims that comparing this case to Hinkel and Gamache is like "saying apples and oranges are 'clearly and obviously' the same because they both grow on trees in orchards." To be sure, there are distinctions among the three cases, but all three involve a mix of evidence -- some favorable to the entrapment defense, some tending to disprove entrapment. Each case involved statements reflecting eagerness and others reflecting reluctance. Although those statements appeared in conversations which played out across different time frames featuring different modes of communication, and the specific facts of the cases do not perfectly *53 align, there is the significant overlap in the categories of facts that we have described. The district court's failure to see that overlap between this case on the one hand, and Hinkel and Gamache on the other -- cases in which we stated the predisposition issue needed to go to the jury -- was a clear error. Although there are many varieties of apples, they are apples all the same.
C. Substantial Rights
Next, we ask whether the clear or obvious error affected
the defendant's substantial rights. By refusing to give an
entrapment instruction, the court denied Pérez an opportunity to
have the jury consider his primary defense
.
See United States v.
Benavidez,
D. Fundamental Fairness
Finally, we ask whether this error is one that
"impugn[ed] the fairness, integrity, or public reputation of the
criminal proceeding as a whole." United States v. Padilla, 415
F.3d 211, 221 (1st Cir. 2005). Our analysis under this final prong
of plain error review is "flexible . . . and depends significantly
on the nature of the error, its context, and the facts of the
case." United States v. Gandia-Maysonet,
Entrapment is a judicially created defense reflecting a
recognition that "[m]anifestly, [the law enforcement] function
does not include the manufacturing of crime." Sherman, 356 U.S.
at 369 (citing Sorrells v. United States, 287 U.S. 435, 443
(1932)). Given the importance of the defense, erroneous or
confusing jury instructions regarding entrapment compromise the
fairness of a trial. E.g., United States v. Kopstein, 759 F.3d
168, 182 (2d Cir. 2014) (holding that misleading jury instructions
regarding entrapment, the defendant's "only viable defense,"
created so much confusion as to "call into question the fairness
and integrity of [the defendant's] conviction" (quoting United
States v. Rossomando,
This is not the common plain error case where the failure of a defendant to properly preserve an objection for de novo review means that the trial court never had an opportunity to rule on the matter at issue. Pérez requested an entrapment instruction before trial and renewed his request at a charging conference shortly before the jury instructions were delivered. Although these steps did not preserve Pérez's challenge under our circuit's law -- because he did not renew his objection after the court charged the jury -- the fact remains that the court was fully advised that Pérez sought the instruction, and objected to its denial, because he intended to rely, and did in fact rely, on entrapment as a *56 defense. [13] Yet, the court denied the request in a single conclusory sentence, providing no explanation for its determination that Pérez had not met his burden of production on the predisposition prong of the defense. [14]
Pérez is now serving a sentence of 151 months' (twelve and a half years') imprisonment based on the outcome of a trial at which the court summarily and improperly excluded his primary defense. Under these circumstances, the trial court's clear or obvious error in refusing to present Pérez's entrapment defense to the jury affected his substantial rights and undermined the fundamental fairness of his trial. To correct that error , we must remand for a new trial.
V. Given that we are remanding for a new trial, we choose to comment on one aspect of any new trial: the voir dire process. *57 See, e.g., United States v. Gonzalez-Maldonado, 115 F.3d 9, 13 (1st Cir. 1997) ("In order to give as much guidance as possible to the district court, we also discuss some of the other claims that are likely to resurface if there is a new trial."). Pérez insists that there was error in the district court's handling of the voir dire. We do not go that far. But the briefing has convinced us that the court would be well-advised to explore the issue of anti- gay bias more thoroughly than it did in the voir dire process reflected in the record.
The court devoted only one question to the topic of anti- gay bias, asking the panel: "Do you feel that you would not be able to render a fair and impartial verdict based on the evidence and my instructions if the defendant were homosexual or gay?" On remand, the court should carefully consider Pérez's argument that this single self-assessment question "was inadequate to permit discovery of stereotypical and pejorative notions rooted in an extremely relevant bias." As Pérez notes, this case raises particular concerns about anti-gay bias not only because the defendant is gay, but because of the graphic sexual nature of the evidence and the repugnant but unfortunately widespread prejudicial belief that gay men are likely to sexually abuse *58 children. [15] Questions probing prospective jurors' actual bias against gay men -- rather than their self-assessment of their ability to be impartial at a criminal trial where the defendant is gay -- would be more useful in identifying jurors who could not be fair and impartial in dealing with the difficult facts of this case.
Vacated and remanded .
- Concurring Opinion Follows -
LIPEZ , Circuit Judge, concurring. I write separately to urge our court in a future en banc proceeding to abandon the rigid and outdated interpretation of Rule 30(d) of the Federal Rules of Criminal Procedure that we had to apply in this case. We are the only circuit that -- without regard for the specificity or timing of a party's initial objection to jury instructions -- deems that objection forfeited if it is not repeated after the court instructs the jury. See United States v. Roberson, 459 F.3d 39, 45 (1st Cir. 2006). That preservation requirement serves no useful purpose in the administration of justice, and it is premised on practicalities that no longer exist.
To be clear, I do not raise this issue because of any reservations about the strength of the majority's plain error analysis in this case. Rather, I am concerned about the impact of our existing rule on criminal defendants who cannot meet that exacting standard in other instances where it is inappropriately applied. Pérez's case provides a helpful illustration of why the rule requiring a pointless post-charge objection is misguided.
Before his trial commenced, Pérez filed an ex parte request for an entrapment jury instruction. At the close of evidence in the two-day trial, the parties participated in an unrecorded charging conference. Even without a record of the conference, it is clear from the district court's docket entry that Pérez renewed his request for an entrapment jury instruction. *60 The district court denied the instruction, stating: "The ruling is based on the arguments presented by the government and defendant's response during the charging conference in connection with predisposition." [16] Following the conference, the attorneys gave their closing arguments and the court then proceeded to charge the jury. It did not invite objections from the parties, and Pérez did not raise an objection.
Under our court's interpretation of Rule 30(d), Pérez
forfeited his claim that he was entitled to an entrapment
instruction, subjecting that claim to plain-error review. See
Fed. R. Crim. P. 52(b). In other words, our law faulted Pérez for
failing to reiterate an objection that had just been rejected at
the charging conference. See United States v. Meadows, 571 F.3d
131, 146 (1st Cir. 2009) ("Objections registered during pre-charge
hearings are insufficient to preserve the issue." (quoting
Roberson,
Rule 30(d) does not require that interpretation. It states: "A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court *61 of the specific objection and the grounds for objection before the jury retires to deliberate." By its terms, then, the rule requires only that the party's objection be specific, explained, and presented before the jury deliberates. Pérez satisfied each of those requirements.
Our rule insisting on a post-charge objection under Rule
30(d) has its origins in a decades-old, out-of-circuit precedent
-- authored by one of our First Circuit colleagues sitting by
designation -- that involved the similar requirement in civil cases
to timely raise instructional challenges. See Fed. R. Civ. P. 51.
In that 1966 case, Judge Aldrich observed that "[t]he duty imposed
upon counsel of 'stating distinctly the matter to which he objects
and the grounds of his objection' cannot normally be performed
until the charge has been heard in its entirety." Dunn v. St.
Louis-San Francisco Ry. Co., 370 F.2d 681, 684 (10th Cir. 1966)
(Aldrich, J. sitting by designation) (quoting then-current
language of Fed. R. Civ. P. 51). Based on that view -- i.e., that
specificity will likely be infeasible before counsel hears the
instructions as given -- the panel in Dunn concluded that an
instructional objection ordinarily will be deemed preserved only
if it is voiced after the court charges the jury. See id. We
subsequently adopted that post-charge preservation rule in our
circuit, including for criminal cases governed by Rule 30(d). See
United States v. Leach,
123 (1st Cir. 1987) (rejecting an argument that a claim regarding jury instructions could be preserved through a pre-charge objection, stating, "[t]hat counsel may have discoursed upon the nature of his theory at some time prior to the giving of the charge will not excuse noncompliance with the express mandates of Rule 30").
The Dunn rationale for requiring a post-charge objection in most cases may have been apt when it was articulated more than a half-century ago. The judges of that era did not routinely give lawyers advance copies of their proposed instructions for discussion and debate at charging conferences. Indeed, even during *63 my tenure as a Maine state trial judge two decades later -- in the late 1980s and early 1990s -- most judges did not preview instructions with counsel in their entirety before delivering them. Hence, the general practice supported the assumption that parties ordinarily could not object with the specificity required by Rules 51 and 30(d) until they heard the instructions as delivered.
That is simply not the current reality. Today, attorneys
are well-positioned to make specific objections to assist the judge
in correcting errors before he or she charges the jury. The
court's ability to distribute proposed instructions in advance and
to easily revise them on the computer means that the attorney's
obligation to object with specificity can now be -- and ordinarily
is -- performed before "the charge has been heard in its entirety."
Dunn,
We are an outlier in requiring a post-charge objection in criminal cases under all circumstances. Every other circuit that has considered the sufficiency of a pre-charge objection employs a more flexible approach, in which a pre-charge objection is evaluated for its adequacy in meeting Rule 30(d)'s requirements *64 to provide the trial court with specific notice of an asserted instructional error. See United States v. Grote, 961 F.3d 105,
115 (2d Cir. 2020) (an objection prior to jury charge is not
forfeited if "taking further exception under the circumstances
would have been futile" (quoting United States v. Rosemond, 841
F.3d 95, 107 (2d Cir. 2016)); United States v. Russell, 134 F.3d
171, 178 (3d Cir. 1998) ("[T]he crux of Rule 30 is that the district
court be given notice of potential errors in the jury instructions,
not that a party be 'required to adhere to any formalities of
language and style to preserve his objection on the record.'"
(quoting United States v. O'Neill, 116 F.3d 245, 247 (7th Cir.
1997)); United States v. Hollinger, 553 F.2d 535, 543 (7th Cir.
1977) ("[S]pecific and distinct objections voiced in an earlier
instructions conference held in the presence of a court reporter
will be considered timely under [Rule 30(d)] . . . . [W]e shall
henceforth allow counsel to incorporate [objections] by
reference."); United States v. Kessi, 868 F.2d 1097, 1102 (9th
Cir. 1989) (parties need not object following the instructions if
doing so would be a "pointless formality"); United States v.
Kottwitz, 614 F.3d 1241, 1270 (11th Cir. 2010) (objection is
preserved so long as it is "sufficient to give the district court
the chance to correct errors before the case goes to the jury"),
opinion withdrawn in part on denial of reh'g on other grounds, 627
F.3d 1383 (11th Cir. 2010); see also United States v. McDonnell,
*65
That flexible approach not only fulfills the notice
purpose of Rule 30(d), but it also aligns with our forfeiture
doctrine more broadly. Issues not raised in the trial court are
deemed forfeited, and subject to plain error review on appeal, to
prevent a party from wasting judicial resources and undermining
finality by "sandbagging" the court. See Puckett v. United States,
556 U.S. 129, 134 (2009) ("[T]he contemporaneous-objection rule
*66
prevents a litigant from 'sandbagging' the court -- remaining
silent about his objection and belatedly raising the error only if
the case does not conclude in his favor."); United States v.
Correa-Osorio,
Indeed, from a practical standpoint, an objection made
during a charging conference, before the instructions have been
delivered, should be preferred to a post-charge objection. The
earlier notice provides more timely opportunity for the court to
correct any errors. See Hollinger, 553 F.2d at 542-43
("Ordinarily, trial judges will derive considerable benefit from
a serious exchange of views by opposing counsel regarding the
proper formulation of the applicable rules of law before they must
charge the jury."). In addition, when a request regarding jury
*67
instructions has been discussed in detail at a charging conference,
and the court has ruled, there is no advantage to anyone for
lawyers to persist with the same objection. To the contrary, such
persistence can be awkward for counsel and off-putting for the
court. See United States v. Toribio-Lugo, 376 F.3d 33, 41 (1st
Cir. 2004) ("To do her job, a lawyer must be forceful, but she
also must handle her relationship with the presiding judge with
care."); United States v. Kelinson,
Importantly, I am not suggesting that a party's failure to lodge an objection after the court has delivered the jury charge should never result in forfeiture of the claim on appeal. Inevitably, some pre-charge objections will be insufficiently specific, or inadequately explained, and will therefore not fulfill the notice objective of Rule 30(d). But Rule 30(d) does not require us to demand pointless repetition of objections that were distinctly raised and decisively denied.
In short, our court's outdated, inflexible approach to Rule 30(d) neither advances the purpose of the rule nor serves the interests of justice and, hence, it poses an unjustifiable barrier to plenary appellate review of fully preserved objections. We should replace our outmoded instructional-error doctrine with the flexible approach that -- for good reason -- is now the prevailing *68 view. In other words, like our sister circuits, we should recognize that a pre-charge objection may preserve a jury instruction issue for appellate review if the objection was sufficiently specific to give the trial court notice of the claimed error and repetition of the objection post-charge would be a futile exercise.
- Concurring Opinion Follows -
*69
BARRON
,
Circuit Judge, concurring
. I share the concern
that Judge Lipez expresses about the way that our precedent
currently requires us to construe Rule 30(d) of the Federal Rules
of Criminal Procedure. The text of the rule, his concurrence
points out, does not compel the rigid procedure for preserving
objections to jury instructions that our case law requires. There
may often be benefits to voicing objections to instructions after
the charge to the jury has been given. But, they are not manifest
in every case. Indeed, the case at hand exemplifies the point.
The sole ground that the District Court gave at the charging
conference for denying the requested instruction here was that the
evidence developed at trial had failed to provide a factual basis
for giving it. Nothing about the charge itself could have called
that ruling into question. Yet, our precedent still requires that
we treat this defendant's failure to seek reconsideration of that
ruling as if it were a failure to have requested the instruction
at all. See United States v. Baltas,
The majority's analysis hinges crucially on the assertion that, as to the matter of predisposition, this case is so like Hinkel and Gamache that the need for an entrapment instruction was "clear or obvious." Respectfully, I cannot see how this is so in this case.
Here is what Hinkel said when he first learned that a 15-year-old was involved: "Sounds very naughty. I am concerned about her age since legally she should be 16 or older." It then took a month before the continued enticement ripened into a planned meeting. Here, by contrast, is what Pérez said upon first learning that an eleven-year-old was involved: "Mmmm yes." Within three days Pérez was messaging, "I want your boyfriend." And within five days from the first message, the meet was on.
There is more. Hinkel offered affirmative evidence that he had never sought a relationship with someone not of legal age. Pérez offered no such evidence. Rather, when the agent asked Pérez at the outset of their communications "what age do you like?," Pérez replied, "The younger the better. I don't discriminate. I started at 8. Hehehe. So you tell me." And when asked "do you like really young guys?," he replied: "Yes. Age? I started at 8." So while Hinkel was saying he never even looked for sex with a minor, Pérez was highlighting a nondiscriminatory track *71 record. And he was clearly saying in context that eight years old was not too young.
Gamache is even further removed. The defendant in Gamache initially expressed interest solely in an adult relationship. Only after "the Government's insistence and artful manipulation" over the course of eight months did he become ready to meet the supposed victims, and even then he was saying "this will be a new experience for me." United States v. Gamache, 156 F.3d 1, 6, 10 (1st Cir. 1998). Pérez, conversely, expressed eager interest immediately. And unlike Hinkel and Gamache, he offered no evidence suggesting a lack of predisposition.
The majority's effort to avoid the stark pre-
dispositional admission by Pérez at the very outset of his
exchanges with the agent warrants particular scrutiny. Ignoring
Pérez's express assurance that he likes them the "younger the
better," all the majority can do is claim that there is some
ambiguity about what the agent meant when he subsequently referred
to his own age. And the majority's claim that it is not obvious
what Pérez was saying is twice-flawed: It certainly seems obvious
he was indeed saying he likes them "the younger the better;" and,
in any event, I do not see how it was possibly plain error for the
trial court to have read Pérez's statement exactly as I do, i.e.,
as a frank, un-coaxed profession of the precise predisposition at
issue. And since there is zero contrary evidence, I simply cannot
*72
see how it was also plain error to conclude that Pérez failed to
generate a sufficient claim of entrapment to get to a jury. See
Gamache,
The bottom line is that the majority significantly errs in comparing Hinkel and Gamache to this case by noting the similarities while ignoring or downplaying the very material differences. The resulting reasoning is like saying apples and oranges are clearly and obviously the same because they both grow *73 on trees in orchards. I would rule that it was not clear or obvious that an entrapment instruction was required in this case. [19]
Notes
[1] The messages were primarily in Spanish. We draw from the certified English translations that were admitted into evidence.
[2] The government also presented testimony from two other HSI agents present at the arrest. An AT&T security manager also explained how he confirmed that the phone which sent the messages belonged to Pérez.
[3] Pérez attempted to present character witnesses, but the court excluded the testimony as impermissible under the Federal Rules of Evidence because there was no pertinent character trait associated with the crime charged.
[4] Pérez raises four additional claims of error: (1) inadequate questioning during voir dire, (2) violations of the Jones Act, see 48 U.S.C. § 864 (requiring that all trial proceedings in the
[5] Here, the government argued, the illegal sexual activity was sexual assault under Puerto Rico law. See P.R. Laws Ann. tit. 33, § 5191(a) (defining sexual assault to include sex with someone under age sixteen).
[6] Pérez mischaracterizes the evidence by describing Dave as "a part-time tutor" to the minor. While Dave did mention that the minor was his student, he more importantly described him as his "boyfriend" and a person with whom he had an ongoing sexual relationship for six months.
[7] Pérez also failed to make an objection when the judge invited
objections on the record directly before instructing the jury.
Even if Pérez had made such an objection, his claim would still be
subject to plain error review under our precedent because he did
not renew it after the instruction, and we hold parties strictly
to that timing. See Wilkinson,
[8] We note that, in our circuit, the second prong is sometimes
described as "clear and obvious error," e.g., United States v.
Scott,
[9] Agent Seig testified that profiles explicitly seeking sexual encounters with minors "would be removed from the social network, because many people would report that and then the owners of the network would remove it."
[10] In an apparent attempt to suggest that Hinkel was reluctant to engage in sex with a minor in a way that Pérez was not, the dissent ignores this quick abandonment of any hesitation in its characterization of Hinkel's response to the prospect of sex with a minor.
[11] The dissent focuses on this immediate affirmative response,
suggesting that Pérez's enthusiasm made the necessity of an
entrapment instruction in this case unclear, and, thus, its
omission was not plain error. But our precedent has been clear on
this point: "[E]agerness alone . . . is not sufficient to remove
the predisposition question from the jury's purview." Gamache,
[12] As noted above in Section IV.A.2., the meaning of Pérez's statements that "I started at 8" is ambiguous. If all inferences are drawn in his favor, those statements do not constitute evidence of prior sexual interest in children.
[13] As noted above, Pérez also failed to object on the record when the judge invited objections immediately before instructing the jury. Despite this omission, the trial record makes clear that the district court was aware of Pérez's objection.
[14] To the extent that it might be relevant to the fourth prong
analysis, we note that the retrial in this case will not require
a victim to endure a second trial. Obviously, there was no actual
victim of child sexual abuse in this attempt case. Cf. United
States v. Colon-Nales,
[15] See Perry v. Schwarzenegger,
[16] Before instructing the jury, the court asked the parties if there were objections to the instructions. Pérez did not object at that time, but that lack of objection would not matter because our precedent requires the objection to be made after the jury is instructed. See Roberson, 459 F.3d at 45. Even if Pérez had objected when invited to do so by the judge, his claim would still be considered forfeited and subject to plain error review on appeal. Id.
[17] In a civil proceeding, the trial court has been required since 2003 to "inform the parties of its proposed instructions and proposed action on the requests [for instructions] before instructing the jury and before final jury arguments," Fed. R. Civ. P. 51(b)(1) (emphasis added), and it "must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered," id. at (b)(2). The rule states that an objection is timely if made "at the opportunity provided under Rule 51(b)(2)."
[18] Indeed, on further review, the Supreme Court also applied
a harmless error analysis and vacated the conviction on the ground
that an error in the jury instructions was not harmless. See
McDonnell,
[19] I do agree, however, with my colleague's concurrences that we should revisit our rule on preserving objections to jury instructions. As ably explained, our rule is not derived from the text of Rule 30(d), no longer fits practice, and is apt to produce unfair results. I also agree with Part V of the majority opinion.